Number 160 • June 2020 i 5th and 6th Floor, Constitutional Court Building Jl. Medan Merdeka Barat No. 6 Pusat Lantai 5 dan 6 Gedung Mahkamah Konstitusi Jl. Medan Merdeka Barat No. 6 Jakarta Pusat ii Number 160 • June 2020 Number 160 • June 2020 DIRECTING BOARD: Editorial Greetings Anwar Usman • Aswanto • Arief Hidayat Enny Nurbaningsih • Wahiduddin Adams he Constitutional Magazine released in June 2020 provides a variety of Suhartoyo • Manahan MP Sitompul interesting information through distinctive rubrics. The news that is in our Saldi Isra • Daniel Yusmic Pancastaki Foekh Tspotlight is the development of the review of Law Number 19 of 2019 DIRECTOR: concerning the Corruption Eradication Commission (KPK Law) for Cases Number M. Guntur Hamzah 62, 70, 71, 73, 59, 77, 79 / PUU-XVII / 2019. Although it has not been decided yet, EDITOR IN CHIEF: the review of this law contains various interesting and important aspects for the Heru Setiawan public. Therefore, the editorial team determined this news as the Main Report. Petitioners for reviewing the KPK Law come from various professions. DEPUTY EDITOR-IN-CHIEF: There are advocates who are of the opinion that the process of ratifying the KPK Fajar Laksono Suroso Law amendments is not in accordance with the applicable laws and regulations. MANAGING EDITOR: Because at the plenary session the number of People's Representative Council Mutia Fria Darsini members who attended was 80, at least less than half of the total number of EDITORIAL SECRETARY: People's Representative Council members. Changes to the KPK Law were carried Tiara Agustina out in secret and discussed in People's Representative Council meetings in a EDITOR: relatively short period of time. There was also a Petitioner from law faculty students Nur Rosihin Ana who questioned the existence of the Commission of corruption Eradication Nano Tresna Arfana • Lulu Anjarsari P Supervisory Board as a paradox which actually weakens the eradication of corruption. In addition, there were Petitioners who questioned the requirements REPORTER: to become Commission of corruption Eradication Investigators in order to provide Ilham Wiryadi • Sri Pujianti proportional standardization for the general public without limiting certain Yuniar Widiastuti professions, which according to the Petitioner were very discriminatory. Panji Erawan The latest trial for the review of the KPK Law on June 24, 2020, featured Utami Argawati • Bayu Wicaksono Petitioners' Experts. Constitutional law expert, Aan Eko Widiarto said that a law in CONTRIBUTOR: its formation must follow several stages, namely planning, drafting, deliberating, Pan Mohamad Faiz ratifying and enacting. However, Aan thinks that the KPK Law has an oddity, Bisariyadi namely the first enactment, then the ratification which lies in the closing section. Luthfi Widagdo Eddyono Meanwhile, the former Chief Justice of the Supreme Court, Bagir Manan, Wilma Silalahi said that the new KPK Law was the result of a joint agreement between the Paulus Rudy Calvin Sinaga People's Representative Council and the President. However, according to M. Lutfi Chakim Petitioners' records, the approval of the People's Representative Council and the President did not meet the quorum because at least 50 percent were not INTERNATIONAL AFFAIRS attended, plus one People's Representative Council member. If this proves to be Sri Handayani true, the ratification of the Commission of corruption Eradication Bill into law will Immanuel Hutasoit not only be legally flawed but also invalid. Sherly Octaviana How will the final trial of Law Number 19 Year 2019 end? We are waiting Wafda Afina for the verdict, which will be discussed in more depth at the Judges Consultative Meeting (RPH) at the Constitutional Court. PHOTOGRAPHER: Gani • Ifa Dwi Septian VISUAL DESIGN: Rudi • Nur Budiman • Teguh COVER DESIGN: Herman To

DISTRIBUTION: Utami Argawati

EDITOR’S ADDRESS: Gedung Mahkamah Konstitusi @officialMKRI @officialMKRI Mahkamah Konstitusi RI mahkamahkonstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6 Jakarta Pusat Telp. (021) 2352 9000 • Fax. 3520 177 Email: [email protected] Website: www.mkri.id

Number 160 • June 2020 1 TABLE OF CONTENTS

4 MAIN REPORT EDITORIAL GREETINGS 1 EDITORIAL 3 KETIKA KONSTITUSIONALITAS REVISI UU KPK DIPERTANYAKAN Barangkali masih lekat dalam ingatan kita semua mengenai demonstrasi besar mahasiswa pada akhir September 2019 lalu di depan Gedung DPR, Jakarta. Salah satu pemicu gabungan dari mahasiswa, buruh, dan pelajar turun ke jalan adalah pembahasan mengenai revisi Undang- Undang Nomor 30 Tahun 2020 tentang Komisi Pemberantasan Tindak Pidana Korupsi (UU KPK). Rencana revisi undang-undang yang mengatur lembaga antirasuah itu dinilai justru menghalangi pemberantasan korupsi.

12 CASE BRIEF 16 ACTION

REQUEST FOR LEGAL TEST SERBA-SERBI OF COVID-19 HANDLING AGENDA VIRTUAL MK WITHDRAWN MASA PANDEMI

2 Number 160 • June 2020 EDITORIAL

THE ETERNAL CHALLENGE AGAINTS CORRUPTION

radicating corruption is often considered a “mission of intervention towards independence), a common vision imposible”. Most are not very optimistic. No matter of anti-corruption and solidarity is absolutely necessary. In how big a stance is issued, it will be difficult to reduce fact, this has become a serious problem in the eradication corruption to its lowest point. Moreover, corruption has of corruption in this country which has been spearheaded Elong been said to be a culture. In fact, including corruption is part by the Corruption Eradication Commission (KPK). of the culture is not very appropriate. This is because culture Corruption eradication has become less than optimal. is related to the processing of tastes, tastes and intentions Yes, a number of corruption cases, both tuna and bigfish, which have no negative relationship and meaning. Regarding have been successfully uncovered. The perpetrators corruption as a culture, said Mahfud MD, apathy would were arrested, tried, and sent to prison. Popular support overshadow every effort to fight it. Therefore, corruption is has also flowed through almost all of the Commission not a national culture so optimism always goes hand in hand. of corruption Eradication’s steps. Unfortunately, in fact The fight against corruption can be achieved. The this is not enough to reduce corruption. In fact, corruption success story of Hong Kong in eradicating corruption in is increasingly rampant and massive. The practice of 1974 is an example. This happened after the Hong Kong corruption in the power structure does not appear to be Independent Commission Against Corruption (ICAC) was decreasing, instead it tends to increase in quantity. Sending formed. Apparently Hong Kong ICAC inspired the world and the perpetrators of corruption to jail, apparently, has not returned optimism to win the war. Within three years, the ICAC had a „deterrent“ effect. Today a corruption case was successfully convicted 247 government officials, including revealed, in the following days other cases were followed. 143 police officers. Naturally, the Hong Kong ICAC has Facing corruption, it seems that the rhythm is not yet become the ‘mecca’ for many countries, including Indonesia. united. It is suspected that the aspect of building relations There are 5 things behind the Hong between state institutions has paid less Kong success story. First, ICAC is an attention. Fellow state institutions have independent institution and is directly not yet had one voice, each one siding with responsible to the highest position their point of view. It seems that fellow in Hong Kong. It ensures the ICAC is state institutions have not yet established free from intervention and performs a stable and optimal configuration of checks functions without suspicion and fear. and balances in eradicating corruption. Second, strong financial support for the Often heard, the Commission of corruption work of ICAC. According to former ICAC Eradication’s authority is considered too Commissioner Bertrand de Speville, the broad and strong, so that it has become ICAC experience requires 0.5 percent of the target of criticism. It is undeniable that the state budget for the fight against there are strong nuances of weakness. corruption. That said, the ICAC is the Through various routes, criticisms for corruption eradication commission with improvement or steps to delegitimize the the largest budget in the world. Third, Commission of corruption Eradication are the ICAC was given extraordinary powers alternately or simultaneously displayed. to carry out investigations. Not only can Both of these can take the same route, they investigate criminal acts of corruption including through legislation, judicial committed in state and private institutions, review, or other means. As long as it is in but all criminal acts related to corruption. However, there is a accordance with the corridors of law and the constitution, system of checks and balances to prevent the abuse of that there is no problem. Goodness-oriented criticism should great power. Fourth, professionalism. There are no less than not be challenged. Perceiving or judging criticism as always 120 people who work by completing special training first. ICAC an attempt to weaken it needs to be avoided. Meanwhile, also has a number of experts related to witness protection, any intention to weaken must be dealt with appropriately technology forensics, and financial investigations who are due to the fact that it exists. This is generally done by trained from the FBI National Academy. Fifth, institutions parties who have benefited from a corrupt system. are multipurpose, so it is not only about prosecution, but This phenomenon is known as “corruptors fight back”. also focuses on prevention and anti-corruption education It needs to be objectively separated between criticism so that the public can participate in fighting corruption. and attenuation. That is the challenge throughout the Apart from these five factors, there are other things efforts to eradicate corruption. Therefore, to conquer the that are no less important, namely public support and inter- challenges in every episode of eradicating corruption, it institutional relations which the ICAC is also seriously building. requires collaboration of all components of the nation, no This latter factor is an important key. Eradicating corruption matter how difficult it is. So, building cooperative relations by ignoring ethical aspects between state institutions between state institutions needs to be put forward in is counterproductive for every step and policy taken. eradicating corruption. This is to be able to carve out a Corruption is not just a matter for anti-racial organizations. success story, at least like the Hong Kong ICAC Hong In line with the components of other key state institutions, Kong, among state institutions, there should be no mode including the public is needed. With the executive and of negating or leaving each other. It is realized that this is legislative bodies, even with the judiciary (not in the sense not an easy and simple thing. Greetings of the Constitution!

Number 160 • June 2020 3 MAIN REPORT

WHEN THE CONSTITUTIONALITY OF THE REVISED CORRUPTION ERADICATION COMMISSION (KPK) LAW IS QUESTIONED

“The revision of the law (the KPK Law) is an initiative of the People’s Representative Council, not from the Government. However, I do see that the Commission of corruption Eradication needs to be monitored.” (President in an interview with BBC News Indonesia on February 21, 2020) Perhaps, we all remember the big demonstration of students at the end of September 2019 in front of the House of Representative Building, Jakarta. One of the combined triggers for students, workers and students to take to the streets was the discussion regarding the revision of Law Number 30 of 2020 concerning the Corruption Eradication Commission (KPK Law). The plan to revise the law that regulates anti-corruption institutions is considered to actually hinder the eradication of corruption.

ot only that, the requests for judicial review of the Even though Law Number 16 of controversy escalated KPK Law on September 24, or exactly 2019 is the Law on Amendments to when the People’s a week after the law was passed. The Law Number 1 of 1974 concerning Representative Council case was registered with the Court Marriage. passed the revision of Registrar’s Office with Number 57/ During the following three Nthe KPK Law into law on September PUU-XVIII/2020, although in the end months, the Constitutional Court 17, 2019. Even though the People’s the case was declared unacceptable received 7 (seven) consecutive Representative Council only took the in the decision read out on November requests related to the review of initiative to propose a revision of the 28, 2019. This was due to the wrong the KPK Law which already had KPK Law on Thursday, September object of the petition because the a number, namely Law Number 5, 2019 night. This means that the Petitioners had incorrectly included 19 of 2019 concerning the Second People’s Representative Council only the law being tested. In their posita Amendment to Law Number 30 of takes 12 days to pass the KPK Law. and petitum, the Petitioners tested 2002 concerning the Corruption The controversy also resulted in Law Number 16 of 2019 which was Eradication Commission. These the revision of the KPK Law being referred to by the Petitioners as the cases, namely the case Number tested. Even though they do not Second Amendment Law to Law 59/PUU-XVII/2019 which was have numbers, a number of students Number 30 of 2002 concerning the submitted by a number of advocates from various universities submitted Corruption Eradication Commission. and graduate students of the

4 Number 160 • June 2020 TABLE OF CONTENTS

Majelis Hakim Konstitusi dalam persidangan pengujian UU KPK sebelum masa pandemi Covid-19.

As-Syafi’iyah Islamic University; case for the 2015-2019 period as well of its formation which was not in Number 62/PUU-XVII/2019 filed by as a number of anti-corruption accordance with Law Number 12 of Gregorius Yonathan Deowikaputra activists; as well as case Number 2011 concerning the Establishment as an individual Petitioner; case 84/PUU-XVII/2019 filed by Martinus of Legislation (Law 12/2011). The Number 70/PUU-XVII/2019 Butarbutar and Risof Mario who period of time for discussion and submitted by academics from the are advocates. However, the case ratification as well as the closure Islamic University of Indonesia (UII); Number 84/PUU-XVII/2019 could of the discussion process that does case Number 71/PUU-XVII/2019 not be accepted by the Constitutional not involve public participation are submitted by students from various Court because the Petitioner did not the arguments of the Petitioners universities; case Number 73/PUU- clearly describe the constitutional to submit a formal review of the XVII/2019 was filed by Ricki Martin losses he had experienced. This KPK Law to the Constitutional Sidauruk and Gregorianus Agung decision was read out on January Court. Not to mention, the People’s who were students; case Number 15, 2020 ago. Representative Council quorum at 77/PUU-XVII/2019 submitted by a the time the KPK Law was ratified student association; case Number Formal Defects that was not in accordance with 77/PUU-XVII/2019 was submitted In general, the Petitioners took People’s Representative Council by a number of Commission of issue with the KPK Law which was Regulation Number 1 of 2014 corruption Eradication leaders deemed formally flawed in terms concerning Rules.

Number 160 • June 2020 5 MAIN REPORT

Gregorius Yonathan Deowikaputra sebagai Pemohon perseorangan perkara Nomor 62/PUU-XVII/2019 dalam sidang yang digelar 19 November 2019 silam.

Meanwhile, regarding the by Wiwin Taswin argued that Article Eradication Commission Law clearly material review, of the eight 21 paragraph (1) letter a of the violates the principle of establishing applications received by the Court’s KPK Law is contrary to Article 1 statutory regulations as stipulated Registrar’s Office, on average, paragraph (3) and Article 20 UUD in Law Number 12 of 2011,” Wiwin the Petitioners tested almost all 1945. According to the Petitioners, explained in front of a hearing articles in the KPK Law with various the ratification of the KPK Law chaired by the Chief Justice of the issues. The issues questioned by by the House of Representatives Constitutional Court Anwar Usman the Petitioners are related to the (DPR) is not in accordance with the accompanied by Constitutional Corruption Eradication Commission spirit of MPR Decree Number XI/ Justice Wahiduddin Adams and Enny which is part of the executive branch MPR/1998 on State Administration Nurbaningsih. The Petitioner argues of power; the establishment of the that is clean and free of corruption, that the Commission of corruption Supervisory Board; permission collusion and nepotism (KKN) and Eradication is a state institution from the Supervisory Board to is not at all reflects the spirit of established with an independent carry out wiretapping, search and/ eradicating corruption. Therefore, nature. With this nature, there or confiscation; the mechanism for he continued, the amendment to is a guarantee against the action the appointment of the Supervisory the KPK Law was not in accordance and prevention of corruption that Board by the President; limitation of with efforts to clean up corruption can be carried out without any SP3 authority owned by Commission in state administration. In addition, intervention from any party. So of corruption Eradication; and a the Petitioners also considered that that prosecution and prevention number of other reasons. the amendment to the KPK Law of corruption can be carried out was formally flawed in its formation properly. With the amendment to the Do not meet the quorum and that the People’s Representative KPK Law, the Supervisory Board as requirements Council’s decision-making in its regulated in Article 21 paragraph (1) In the inaugural trial of case formation did not meet the quorum letter a states that “the Corruption Number 59/PUU-XVII/2019 which requirements. Eradication Commission consists of: was held on October 14, 2019, as “Thus, the formation of a. The Supervisory Board, totaling many as 25 advocates represented amendments to the Corruption 5 (five) people”. The existence of

6 Number 160 • June 2020 this council has the potential to the formation of the KPK Law Article 3, Article 12 B, Article 24, interfere with the independence was not a priority for the national Article 37B paragraph (1) letter b, of the Commission of corruption legislation program or the People’s Article 40 paragraph (1), Article 45A Eradication in carrying out its Representative Council’s National paragraph (3) letter a, and Article 47 duties and functions. As a result, Legislation Program. The Petitioners of the a quo Law against the 1945 the suppression and prevention of considered the discussion about it Constitution. corruption is not optimal and has this year as something that was In the same session, Petitioner the potential to nourish corruption very forced. for case Number 71/PUU-XVII/. According to the Petitioners represented by Zico Leonard Meanwhile, Petitioner for at the hearing which was held Djagardo Simanjuntak, questioned case Number 70/PUU-XVII/2019 on November 19, 2019, the KPK the formation of the Supervisory represented by Anang Zubaidi as Law does not have legal certainty Board in the Commission of Petitioner said that in the process because existing Commission of corruption Eradication structure by of forming the KPK Law there was corruption Eradication employees the legislators. According to him, a problem of procedural defects. cannot possibly be appointed as the existence of the Supervisory The petitioners consider the KPK civil servants because they are not Board is considered to have deviated Law with several provisions in it, fulfilled by statutory regulations. from the supervisory system potentially disrupting the corruption In addition to formal testing, the and resulted in weakening the eradication agenda. Furthermore, Petitioners also submitted a material eradication of corruption crimes the Petitioners also revealed that review of Article 1 number 3, committed by the Commission of

ALASAN PENGUJIAN UU KPK KE MK Sebanyak enam perkara pengujian Undang-Undang Nomor 19 Tahun 2019 Tentang Perubahan Kedua Atas Undang-Undang Nomor 30 Tahun 2002 Tentang Komisi Pemberantasan Tindak Pidana Korupsi (UU KPK) berlanjut proses persidangannya. Secara garis besar, berikut alasan-alasan para Pemohon mengajukan pengujian UU KPK baik secara formil maupun materiil.

ALASAN PENGUJIAN MATERIIL ALASAN PENGUJIAN 1. Keberadaan Dewan Pengawas dinilai menghalangi independensi KPK FORMIL dalam melakukan penindakan dan pencegahan korupsi. Seperti: a. aturan proses penyadapan, penggeledahan, dan/atau penyitaan yang harus seizin Dewan Pengawas (Pasal 12 ayat 1, Pasal 12B, UU KPK dinilai memiliki Pasal 12C, Pasal 12D, Pasal 37 ayat 1 huruf b, Pasal 47,); cacat formil karena b. Dalam mekanisme pengangkatan Dewan Pengawas, Presiden diberi dalam pembentukannya kewenangan untuk mengangkat Dewan Pengawas (Pasal 69A). mengabaikan partisipasi 2. Dalam UU KPK tersebut, KPK merupakan lembaga negara dalam rumpun masyarakat dan eksekutif (Pasal 1 Angka 3, Pasal 3); pembahasan dinilai tertutup 3. Kewenangan SP3 yang dimiliki KPK dibatasi hanya sampai 2 tahun (Pasal serta tergesa-gesa. 40 ayat 1 dan ayat 2); 4. Aturan Penyelidik Komisi Pemberantasan Korupsi dapat berasal dari kepolisian, kejaksaan, instansi pemerintah lainnya bersifat diskriminatif (Pasal 43 ayat 1); 5. Perubahan status pegawai KPK menjadi ASN dinilai dapat mengganggu independensi pegawai KPK (Pasal 24 ayat 3); 6. Kewenangan KPK menindak tindak pidana pencucian uang ditiadakan.

Number 160 • June 2020 7 MAIN REPORT

Para Pemohon dalam sidang pengujian materiil UU KPK.

corruption Eradication. In addition, this provision, every citizen should the House of Representatives, in this the Commission of corruption be given free space to take part case the House of Representatives Eradication Supervisory Board has in efforts to improve the life of legislative institution,” he said in a the authority to grant permits for the nation, including in efforts to session chaired by The Chief Justice wiretaps, searches and confiscations eradicate corruption. of the Constitutional Court Anwar that have exceeded the limits of Usman. supervision. This shows that the The Initiative of the People’s The government also denied Supervisory Board is superior and Representative Council that the revision of the KPK has greater authority than the In relation to these petitions, Law was not in accordance with Commission of corruption Eradication the Government through Agus the procedures for establishing leadership. Hariadi as the Expert Staff of legislation. According to Agus, the Furthermore, for case Number the Ministry of Law and Human formation of the revision of the KPK 73/PUU-XVII/2019, the Petitioner Rights denied all of the Petitioners’ Law has been carried out with the represented by Ricki Martin arguments. During a hearing hearing processes and procedures for the Sidauruk said that Commission of statements from the President and formation of statutory regulations in corruption Eradication investigators People’s Representative Council on accordance with correct and precise should not have come from the 19 November 2019 for case Number procedures. The government also police, prosecutors, Commission 59/ PUU-XVII/2019, the Government submitted chronological evidence of of corruption Eradication internal emphasized that the revision of the the planning process, harmonization, and/or other government agencies. KPK Law was an initiative of the unification, and consolidation of the According to Ricki, limiting the People’s Representative Council. conception of the draft revision of recruitment of Commission of “The revision of the Corruption the KPK Law. corruption Eradication investigators Eradication Commission Law has who can only be followed by people become an initiative of the Indonesian An Extension of the President’s from the police, prosecutors, Parliament, which of course the Hand Commission of corruption Eradication process of planning, harmonizing, Meanwhile, regarding the internals and/or other government unifying, and consolidating the position of the KPK which is in agencies alone will certainly reduce conception of the KPK Law revision the executive sphere, Agus said the level of independence. With Bill is carried out by the apparatus of that the implementation of the

8 Number 160 • June 2020 KPK Law is under the authority of the Commission of corruption constitutional authority, so that of the president which is one part Eradication, Agus explained that its existence is responsible for of government affairs. This is as the independence of the Corruption the president, is formed by the regulated in Article 5 paragraph Eradication Commission (KPK) comes president, appointed and dismissed (2) of the 1945 Constitution. In from the president’s constitutional by the president. Third, the KPK is addition, he explained that the authority as law enforcer and as positioned under the president as an KPK was not formed based on the holder of government power. extension of the government in order the 1945 Constitution, but was The independence of the Corruption to carry out government actions to formed based on the KPK Law. Eradication Commission, he eradicate criminal acts of corruption “As an institution, the Commission continued, cannot be compared with as part of government affairs in of corruption Eradication is not a the independence of state institutions the field of law. “So functionally, constitutional authority, but as a that are constitutionally authorized. the position of the Corruption supporting institution,” said Agus. However, this independence is a Eradication Commission must Furthermore, Agus stated that delegation from an actual state actually be under the coordination the KPK was formed based on a institution, namely the constitutional of the Minister of Law, as stipulated law which materially shows that the independence of the president’s in Article 25 paragraph (2) of Law KPK is part of the element of the authority. Number 39 Year 2008 concerning implementation of the eradication So that in a constitutional State Ministries,” he explained. of corruption. This makes the KPK manner, Agus continued that the unable to stand alone. “And in terms KPK had the following positions; As Supervision of the function of the KPK as a state first, the KPK has the position Regarding the formation of the tool to take government action in of an institution or agency that Supervisory Board, Agus said the the legal field as an extension of supports government functions. existence of the Supervisory Board the president’s authority,” said Agus. Second, the KPK is the recipient cannot be in conflict with each Touching on the independence of the presidential delegation of other and could constitutionally

KRONOLOGIS PEMBAHASAN RUU KPK ANTARA PEMERINTAH DAN DPR*)

5 SEPTEMBER 2019 12, 13, DAN 16 Rapat Paripurna DPR RI SEPTEMBER 2019 revisi Undang-Undang Rapat Panja DPR KPK sebagai usul DPR

11 SEPTEMBER 2019 17 SEPTEMBER 2019 Rapat Kerja DPR dengan Rapat Paripurna Menteri Hukum dan HAM pengambilan keputusan yang juga dihadiri oleh RUU revisi UU KPK Menteri PAN dan RB menjadi undang-undang

*) Sumber: Keterangan Presiden dalam sidang pada 19 November 2019

Number 160 • June 2020 9 MAIN REPORT

interfere with the independence of Board to conduct wiretaps, searches out an investigation and prosecution. the KPK. The Supervisory Board, he and confiscations, Agus said that the “So that the provisions of the explained, was only in the framework authority of the Supervisory Board a quo article actually provide a of carrying out supervisory duties cannot be interpreted as superior guarantee of protection and just legal which included research or review authority, but is linked to a system certainty, as well as equal treatment of agencies carrying out their duties of checks and balances. before the law on the principle that and authorities. Meanwhile, the “The authority of the Supervisory everyone can be convicted with Corruption Eradication Commission Board to supervise and grant permits evidence that can convince his crime. carries out the duties of preventive can be justified and if directed at However, if the evidence of the crime measures to investigate, investigate its goal of implementing a pattern is inconclusive, then the person can and prosecute corruption crimes. of checks and balances as a tool to be released,” he explained. “The Petitioners’ concern to maximize efforts to better eradicate abolish Article 21 paragraph (1) corruption,” Agus explained in a Check and Balances letter a with the argument that hearing held on February 3, 2020 to The House of Representatives the existence of the Commission of hear statements from the President has also denied all of the arguments corruption Eradication Supervisory and House of Representatives related expressed by the Petitioners. In a Board can weaken the Commission to the cases Number 62, 70, 71, 73, session that was held on February 3, of corruption Eradication is very 77, 79/PUU-XVII/2019. 2020, Member of Commission III of unwarranted and in this case While the Petitioners’ argument the House of Representatives, Arteria the government emphasizes that questioning the SP3 limitation, Dahlan delivered a statement from the a quo article besides not the Government argued that if the House of Representatives. He contradicting the 1945 Constitution, there was no limit for 2 years explained that the influence of the also it is not meant as an article as regulated in Article 40 of the independence aspect in the placement to weaken the Commission of Corruption Eradication Commission of the Commission of corruption corruption Eradication, but rather Law, then it would cause human Eradication in the executive branch as an improvement in the corruption rights violations. If new evidence does not conflict with Article 24 eradication system, ”explained Agus. is found, even though the SP3 has paragraph (1), Article 24 paragraph Meanwhile, regarding the need been terminated, the Commission of (2), Article 24 paragraph (3) of the for permission from the Supervisory corruption Eradication can still carry 1945 Constitution. According to

10 Number 160 • June 2020 Feri Amsari selaku kuasa hukum Pemohon Perkara Nomor 79/PUU-XVII/2019 menyampaikan permohonan. him, every power has a tendency Representatives is of the opinion strengthening, reforming, and to develop into arbitrary authority. that its presence will not interfere maximizing the Commission of Therefore, he continued, power must with the independence and freedom corruption Eradication supervision always be limited by separating of the Commission of corruption system. power into branches that are checks Eradication from any influence in “The existence of the supervisory and balances in an equal position. carrying out its duties and powers. board only has implications “Thus, there is a need for This information, he continued, for changes in the mechanism supervision of power so that it refers to the legal politics of for implementing the duties / does not become arbitrary. In the legislators who designed the authorities of the Commission of the context of the Commission of Supervisory Board as a Commission corruption Eradication so that corruption Eradication as a law of corruption Eradication subsystem the formation and granting of enforcement agency, there is a need and agency. The supervisory board authority to the supervisory board for oversight of the Commission of is not a power in the form of in article a quo does not at all corruption Eradication’s authority an agency or institution outside reduce the independence of the to deal with corruption, especially a of the Commission of corruption implementation of duties, 1x24 fact, the Commission of corruption Eradication that can influence hours please request that the tap Eradication’s special committee the Commission of corruption is granted or if not granted, it is has found many irregularities that Eradication in carrying out its duties mandatory to provide reasons . Until have occurred during the nearly 17 and powers. However, continued now, the tapping permit is empty, years the Commission of corruption Arteria, the Supervisory Board is there is no wiretapping permit, ”said Eradication was born. The existence inherently part of the Commission Arteria. of the Commission of corruption of corruption Eradication’s internal Until this article was published, the Eradication as a state institution in function as a supervisor to prevent trial process for the judicial review of the the executive realm does not mean abuse of authority. The presence KPK Law was still ongoing until the 9th that the Commission of corruption of the supervisory board as a trial with an agenda of hearing experts from Eradication is not independent, “he subsystem within the Commission the Petitioners. said. of corruption Eradication agency LULU ANJARSARI Regarding the existence of the is also a form of concrete efforts Supervisory Board, the House of by legislators in implementing

Number 160 • June 2020 11

CASE BRIEF

finances in handling Covid-19 and closes legal supervision efforts for state courts. Thus, this article is considered contrary to the principles of openness and responsibility in achieving the prosperity of the people. Therefore, the a quo article is deemed to have also closed the accountability of the Government in using the APBN, which indicates a setback in the law in Indonesia. Regarding the petition, the Court held a Preliminary Examination through Panel Session on April 28, 2020. Furthermore, the Court held a Panel Session to examine the Revision of the Application on May 14, 2020 without the Petitioner’s presence where the Panel of Judges read out a letter from the Petitioner regarding the Revocation of Case REQUEST FOR LEGAL TEST OF COVID-19 Number 25 / PUU- XVIII / 2020 dated 11 May 2020. HANDLING WITHDRAWN “Based on the provisions of Article 35 paragraph (1) of Law Number 24 of 2003 concerning the Constitutional The Constitutional Court (MK) decided to grant the withdrawal Court as amended by Law Number 8 of 2011 concerning of the petition for material review of Government Regulation Amendments to Law Number 24 of 2003 concerning the in lieu of Law Number 1 of 2020 concerning State Financial Constitutional Court (MK Law), Deliberative Meetings The Policy and State Financial System Stability for Handling judge on May 14, 2020 has determined the revocation or the 2019 Corona Virus Diseases Pandemic (Perppu for withdrawal of application Number 25 / PUU-XVIII / 2020 Handling Covid-19). The pronunciation of Decree Number because according to the law and the application cannot be 25 / PUU-XVIII / 2020 was read by the Chief Justice of the re-filed and based on the provisions of Article 35 paragraph Constitutional Court Anwar Usman on Tuesday (19/5/2020) (1a) of the Constitutional Court Law, the application file is by implementing a physical distancing pattern. returned to the Petitioner, “said the Chairman. MK Anwar Previously, Damai Hari Lubis as the Petitioner Usman in the Constitutional Court Decision hearing which argued that Article 27 paragraph (1), paragraph (2), and was held in the Plenary Court Room of the Constitutional paragraph (3) of the Covid-19 Handling Perppu violates its Court (Sri Pujianti) constitutional right to obtain information on the use of state

UNACCEPTABLE JUDICIAL ADMINISTRATION ACT The Constitutional Court (MK) decided that the petition for reviewing Law Number 30 of 2014 concerning Government Administration (Law on Government Administration) was unacceptable. “The verdict states that the Petitioners’ petition is unacceptable,” said Plenary Chair Anwar Usman accompanied by constitutional judges at the pronouncement of the verdict on Tuesday (19/5/2020) by implementing health protocols related to Covid-19. As is well known, Petitioner for Case Number 11 / PUU- the Administrative Court Decision when the phrase was XVIII / 2020 is the Indonesian Maha Bidik Association, examining interpreted as a loss and had to be experienced directly and Article 75 paragraph (1) of the Government Administration clearly. . Law. The Petitioner argued, the provision of the phrase “However, in the petitum section, the Petitioners “disadvantaged community members” in Article 75 paragraph formulated things that are contrary to the description in the (1) of the Government Administration Law causes not all posita and in the explanation at the preliminary hearing. In members of the community 5 to be able to make administrative the petitum section, the Petitioners stated that the phrases efforts and sue the PTUN against decisions and / or actions of tested were contrary to the 1945 Constitution as long government officials because they are considered not to suffer as they were not interpreted as losses and the interests losses and direct and real interests that lead to discriminatory experienced had to be direct and real, ”said Arief. treatment against other citizens, thereby contradicting Article Therefore, according to the Court, the existence of a 28I of the 1945 Constitution. contradiction between the formulation of the posita and After examining the Petitioners’ argument, especially the Petitioner’s petitum gave rise to the confusion of the in the posita and petitum sections of the petition, the Court Court regarding what the Petitioner actually asked for. “The found that the constitutional problem described in the posita unclearness caused the Petitioners’ petition to disappear, so was the phrase “aggrieved community members” which the Court did not consider further petitions,” said Arief. (Nano resulted in the Petitioner being prevented from contesting Tresna Arfana)

12 Number 160 • June 2020

with the President, indirectly eliminated the position of the President as commander in chief. As a concrete example, in the petition Aristides wrote that this discrepancy was seen at the implementation of state ceremonies for the funerals of former presidents and vice presidents. According to him, those in charge of holding the red and white flag at the tomb are the Chief of Staff of the Indonesian Army, the Chief of Staff of the Indonesian Navy, and the Chief of Staff of the Navy and the Chief of Police. Observing this matter, Aristides considered that the position of TNI Commander was invalid because it contradicts Article 10 of the 1945 Constitution which states “The President holds the highest power over the Army, TESTING THE CONSTITUTIONALITY OF Navy and Air Force.” THE POSITION OF THE COMMANDER OF “So it should be based on the phrase ‘... holding the highest power over the Army, Navy, and Air Force’, the THE INDONESIAN NATIONAL ARMY direct superior of the Army, Navy and Navy leadership is the President and not the TNI Commander. That is the The Constitutional Court (MK) held an inaugural trial for basis of our authority, ”said Aristides, who is active in the the review of Law Number 34 of 2004 concerning the Community Empowerment and Regional Finance Institute Indonesian National Army (TNI Law) on Monday (18/5) in (LPMKD). the Plenary Court Room. In the registered session Number For this reason, in the petitum of the petition, Aristides 31 / PUU-XVIII / 2020, Aristides Verissimo de Sousa Mota requests that the Court declare the provisions of Article as the Petitioner stated that Article 1, Article 4, Article 12, 1, Article 4, Article 12, Article 13, and Article 14 of Law Article 13, and Article 14 of the TNI Law contradict the 1945 Number 34 Year 2004 concerning the Indonesian National Constitution. In an illustration based on interpretation The Armed Forces contrary to the 1945 Constitution and order Petitioner, himself stated that the existence of the TNI the posting of its decision in the State Gazette. Republic of Commander in relation to the hierarchical system of office Indonesia. (Sri Pujianti)

LACKING A LEGAL POSITION, THE APPLICATION FOR JUDICIAL ELECTION LAW IS UNACCEPTABLE

The Constitutional Court (MK) stated that it could not accept the judicial review of Law Number 10 of 2016 concerning the Election of Governors, Regents and Mayors (Pilkada Law) against the 1945 Constitution. Decision Number 7 / PUU-XVIII / 2020 submitted by Michael and Kexia Goutama who is a student at a private university (PTS) in Jakarta, said on Tuesday (19/5/2020) at the Plenary Court Room. In the legal considerations read out by Constitutional that the Court is of the opinion that the Petitioners do not Justice Daniel Yusmic P. Foekh, the Court considered that have the legal position to submit the a quo petition. no description was found regarding the impairment of the In the previous session, the Petitioners manipulated Petitioners’ constitutional rights caused by the enactment Article 176 of the Pilkada Law in contradiction to Article of Article 176 of the Pilkada Law. The Petitioners only 18 Paragraph (4), Article 28D Paragraph (1), Article 28H explained that their constitutional rights are protected by Paragraph (3), and Article 28I Paragraph (5) of the 1945 Article 28D paragraph (1) and paragraph (3) of the 1945 Constitution. According to him, if a minister is elected the Constitution, but did not describe what kind of protection president , when the minister resigns, the successor will that was not obtained by not filling the position of deputy still be elected by the president. Likewise with regional governor from the concrete case presented in the petition. heads, when people elect a regional head, the election of Furthermore, Daniel also stated that the Petitioners felt a replacement must also be chosen by the community. that they did not get the same opportunity in government, This has happened in a concrete case in 2017 when Djarot especially during the election for the Governor of DKI Jakarta Syaiful Hidayat was appointed as Governor of DKI Jakarta to in 2017. However, continued Daniel, the Petitioners could replace Basuki Tjahja Purnama. (Sri Pujianti) not explain the constitutional losses they experienced. So

Number 160 • June 2020 13

CASE BRIEF

Agreement (PPPK) be upgraded to become Candidates for Civil Servants (CPNS). One of the fundamental considerations for the formation of the ASN Law is the need to build a state civil apparatus that has integrity, is professional, is neutral and is free from political intervention and is free from corruption, collusion and nepotism. According to the Petitioners, Article 6, Article 58 paragraph (1), Article 99 paragraph (1) and paragraph (2) of the ASN Law has created legal uncertainty because it tends to protect the acceptance of CPNS from the public channel and ignores the constitutional rights of honorary staff who have served and worked for several years. According to the Petitioners, this constitutes discrimination. With regard to the Petitioners ‘argument, after the Court examined carefully it turned out that the real point of THE CONSTITUTIONAL COURT REJECTS the Petitioners’ objection did not lie in the existence of the THE APPLICATION FOR JUDICIAL REVIEW articles being tested, but in Permenpan 36/2018 and PP 49/2018. In addition, in the description of the arguments OF THE STATE CIVIL APPARATUS developed by the Petitioners in legal standing, it is also seen that the main issue questioned by the Petitioners is related The application for judicial review of Law Number 5 of to the enactment of Permenpan 36/2018 and PP 49/2018 2014 concerning State Civil Servants (ASN Law) was finally which directly resulted in the Petitioners being unable to rejected by the Constitutional Court (MK). The request automatically be appointed as PNS and also become PPPK. for judicial review of the ASN Law was submitted by “Thus if the Petitioners follow the line of thought of Mahmudin and 18 other Petitioners as honorary staff. The the Petitioners, the objections of the Petitioners are aimed Constitutional Court in its verdict stated that it rejected all not at the norms of Article 6, Article 58 paragraph (1) and requests. Article 99 paragraph (1) and paragraph (2) of the ASN Law “The verdict is to try, rejecting the Petitioners’ but at the statutory regulations under the law. -A law which petition in its entirety,” said Plenary Chair Anwar Usman is not constitutionally within the authority of the Court to accompanied by other constitutional judges at the hearing judge it. Moreover, such delegation is legally justified in the for the pronouncement of the decision 9 / PUU-XVIII / 2020, statutory system, “Constitutional Justice Wahiduddin Adams Tuesday (19/5/2020) afternoon. continued. In its opinion, the Court revealed that the Petitioners Therefore according to the Court, based on all the requested that their status as honorary staff or other descriptions above, the arguments for the Petitioners’ petition similar designations or Government Employees with a Work are legally groundless in their entirety. (Nano Tresna A.)

CONCURRENT ELECTION 2019 AGAIN SUED

The holding of simultaneous elections in 2019 is back in the spotlight. Now a citizen, Aristides Verissimo de Sousa Mota, submitted a material review regarding the implementation of the simultaneous elections held on April 17, 2019. The preliminary hearing for the review of Law Number 7 of 2017 concerning General Elections (Election Law) on Monday (18/5/2020) at the Plenary Court Room. In this registered session Number 29 / PUU-XVIII / 2020, the Petitioner argues that the Election Law is inconsistent with Article 1 paragraph (2), Article 6A paragraph (1), Article 18 paragraph (3), Article 19 paragraph (1), Article 22C UUD 1945. Aristides, who was present without a legal attorney, for legislative members (House of Representatives, revealed that the simultaneous election implementation Provincial Regional People’s Representative Assembly, and in 2019 had caused a number of casualties due to fatigue. Regency / City Regional People’s Representative Assembly The complexity of the methods used to elect candidates are implemented with an open proportional system and

14 Number 160 • June 2020

elections to elect Regional Representative Council members the public does not know who will be elected and after are carried out with a multi-representative district system. voting the people do not remember who they have voted “By using an electoral system that is so complex, the for. He hopes that the number of candidates for Regional principles of effective and efficient election implementation Representative Council of the Republic of Indonesia as stipulated in article 3 letters j and k of Law Number 7 of members for each electoral district (DAPIL) is limited to a 2017 are not implemented,” he said in front of a hearing maximum of 10 people. Thus for each province the number chaired by Constitutional Justice Enny Nurbaningsih of candidates for Regional Representative Council of the accompanied by by Constitutional Justice Arief Hidayat and Republic of Indonesia members is not more than 40 people. Manahan MP Sitompul. If a candidate / member of People’s Representative Council, However, according to Aristides, the system for the Provincial Regional People’s Representative Assembly and election of candidates for Regional Representative Council Regency / City Regional People’s Representative Assembly of the Republic of Indonesia members is correct because dies, then the winning party’s Central Executive Board it uses a district system with people’s representatives as (DPP) in the district has the right to replace him with a new mandated by Article 168 paragraph (2) of the Election Law. member. (Utami Argawati) It’s just that the number of candidates is not limited so that

INSURANCE MEMBER law and carried out no later than two years and six months after the verdict was pronounced. As a follow-up, the REPRESENTATIVE BODY (BPA) JOINT President established Government Regulation Number LIFE INSURANCE (AJB) BUMIPUTERA 87 of 2019 concerning Insurance Companies in the Form of Joint Business. However, according to the Petitioner, the TEST COMPANY SETTINGS Government and the Parliament have made a setback by The Constitutional Court (MK) held a preliminary trial for amending Law Number 2 of 1992 concerning Insurance judicial review of Law Number 40 of 2014 concerning Business to Law Number 40 of 2014 concerning Insurance, Insurance on Monday (18/5) afternoon in the Plenary Court especially in Article 6 paragraph (3). Room. The case registered with Number 32 / PUU-XVIII / “However, what regulates the issue of mutual 2020 was filed by the Member Representative Body (BPA) of insurance in the sense that Bumiputera Insurance is the Joint Life Insurance (AJB) Bumiputera 1912. The Petitioners same is regulated in the provisions of one of the articles examined Article 6 paragraph (3) of Law Number 40 of 2014 of Law no. 2 of 1992, “said Zul. The Petitioners are of the concerning Insurance (UU Insurance) which reads “Further opinion that the existence of this PP is also contrary to and provisions regarding joint venture legal entities as referred contrary to the existing Articles of Association of AJB and to in paragraph (2) shall be regulated in a Government guarantees the existence and authority of the Petitioners. Regulation”. Therefore, in their petitum, the Petitioner asked the The Petitioners think that these provisions are not in Constitutional Court to state the phrase “regulated in a accordance with the substance of the Constitutional Court Government Regulation” in that article is contrary to the Decision Number 32 / PUU-XI / 2013 dated April 3, 2014. 1945 Constitution and does not have binding legal force In this decision, the Constitutional Court ordered that the as long as it does not mean “... regulated by law.” (Utami provisions concerning insurance business in the form of Argawati) Mutual Insurance must be further regulated by a separate

Number 160 • June 2020 15 ACTION HUMAS MK/GANIE

The extended family of the Constitutional Court held a Halalbihalal Eid al-Fitr 1441 Hijriyah event via video HALALBIHALAL TO UNITE conference, Thursday (28/5) at the Constitutional Court Building. Public THE NATION Relations Photo / Gani.

he extended family of the Justice Arief Hidayat, Constitutional then in fact this culture is the unifying Constitutional Court held a Justice Enny Nurbaningsih, Constitutional medium for the nation‘s children,“ said Halalbihalal Eid al-Fitr 1441 Justice Saldi Isra, Chairman of the Ethics Anwar. Hijriyah event, on Thursday Council Bintan Regen Saragih, Member Anwar explained, the tradition T(28/5/2020). The implementation of of the Ethics Council Ahmad Syafii of gathering including sungkem has this year‘s halalbihalal event is different Maarif, Member of the Ethics Council historically occurred during the time of from previous years because it is still Achmad Sodiki, and MK employees. the kings in Java. However, at that time in the Corona Virus Disease 2019 „Even though we hold halalbihalal the term halalbihalal was not known. (Covid-19) pandemic situation. The this time in a different way through „The term halalbihalal was initiated by event which was held on lt. 11 The the Zoom network, it does not reduce KH. Abdul Wahab Hasbullah, one of Constitutional Court building through gratitude and sincerity in welcoming the pioneers of the Nahdlatul Ulama the video converence channel using Victory Day, Idul Fitri 1441 Hijriyah and organization. One of the objectives of the Zoom application was attended by being able to stay in touch,“ said Chief halalbihalal is to unite political figures Chief Justice of the Constitutional Court Justice of the Constitutional Court Anwar who often have different opinions at Anwar Usman, Deputy Chief Justice Usman during his remarks. that time, „said Anwar. of the Constitutional Court Aswanto, Anwar said, the halalbihalal The Halalbihalal which was held Constitutional Justice Wahiduddin tradition is a very distinctive tradition this year felt very different from the Adams, Constitutional Justice Suhartoyo, of the Indonesian Muslim community. previous years where usually people Constitutional Justice Manahan MP This tradition has been passed down could meet face to face, shake hands Sitompul, Daniel Yusmic, Secretary from generation to generation and and forgive one another. „Currently, General of the Constitutional Court M. has become a culture that serves to halalbihalal is practiced virtually due Guntur Hamzah, Registrar MK Muhidin, strengthen brotherhood with others. to the Covid-19 pandemic. Not only in and MK echelon officials. In a separate „If this culture is associated with Indonesia, but also in many countries, place, there were virtually Constitutional our national life which is so great, said Anwar. NANO TRESNA ARFANA

16 Number 160 • June 2020 HUMAS MK/IFA

Chief Justice of the Constitutional Court Anwar Usman participated in a ceremony to celebrate Day virtually from the Constitutional Court Building on Monday (1/6/2020). Public Relations / Ifa PANCASILA BIRTHDAY Photo. VIRTUAL CEREMONY

hief Justice of the the Indonesian nation. He continued side with people who are experiencing Constitutional Court (MK) that this epidemic also tested the calm difficulties. The Head of State also asked Anwar Usman participated in taking a fast and precise route. “In state officials to serve the community in a ceremony to celebrate facing these tests, we are grateful regardless of ethnicity, religion, race and Pancasila’s birthday virtually that Pancasila remains a corner star intergroup (SARA). Cfrom the Constitutional Court Building to move us all,” said Jokowi. To note, this ceremony is conducted on Monday (1/6/2020). The Pancasila In addition, Jokowi said that virtually, preceded by the reading of Birthday commemoration ceremony Pancasila also strengthens the the Pancasila text by the Speaker of is broadcast live from the Pancasila brotherhood and cooperation of the the MPR, Bambang Soesatyo, then Building, Ministry of Foreign Affairs, nation to ease the burden on society the Chairman of the Parliament, Puan through the Zoom application. and foster the fighting power of the Maharani, who reads the text of the On this occasion, President of the Indonesian people to overcome the 1945 Constitution. This ceremony is also Republic of Indonesia (RI) Joko Widodo difficulties and challenges that are broadcast live via electronic media and as the inspector of the ceremony said being faced. The noble values ​​of the Zoom application which must be that the Covid-19 pandemic that has hit Pancasila, Jokowi continued, must followed by leaders of state institutions currently is testing the fighting power, be presented in real life. In addition, / ministries. as well as all regional heads sacrifice, discipline and obedience of Jokowi also invited all state officials to throughout Indonesia. UTAMI

Number 160 • June 2020 17 ACTION HUMAS MK/IFA

Deputy Chief Justice of the Constitutional Court (MK) Aswanto delivered an online CONSTITUTIONAL RIGHTS public lecture with the theme „Demanding Rights and Carrying Out Constitutional Obligations in the Middle of the Covid-19 Pandemic“ on Tuesday (9/6/2020) afternoon AND HUMAN RIGHTS through the Zoom application. Photo: Public Relations / Ifa

eputy Chief Justice of Fajar Laksono, Dean of FH Gorontalo because he / she becomes a citizen. the Constitutional Court State University Fenty U. Puluhulawa, Thus, when we become Indonesian (MK) Aswanto delivered an all high-ranking officials Gorontalo State citizens, our constitutional rights are online public lecture with University, a number of MK employees rights that have been regulated in the the theme „Demanding and Gorontalo State University Law Constitution, „explained Aswanto. DRights and Carrying Out Constitutional Faculty students, as well as law faculty In relation to constitutional rights Obligations in the Middle of the Covid-19 students from various universities. with the Covid-19 pandemic, continued Pandemic“ on Tuesday (9/6/2020) Aswanto said, if you want to Aswanto, constitutional rights are afternoon through the Zoom application. understand constitutional rights, you citizens‘ rights that must be fulfilled This event was held in cooperation must first examine the notions of by the government in a state declared between the Constitutional Court and constitutional rights and human rights. a health emergency. „Meanwhile, the Gorontalo State University. „Human rights are rights that a person function of the government in relation „Are constitutional rights the same gets because he becomes a human to human rights is to guard so that as human rights,“ said Aswanto when being, so that the source is from Allah what constitutes human rights can be opening the lecture which was attended SWT. Human rights are regulated or not fulfilled and can be promoted by the by Zoom participants, including the regulated by the Constitution, we must state. In contrast to constitutional rights Head of Public Relations and Domestic obey them. Meanwhile, constitutional which are domestic in nature, the state‘s Cooperation of the Constitutional Court rights are rights obtained by a person obligation is to regulate, said Aswanto. NANO TRESNA ARFANA

18 Number 160 • June 2020 HUMAS MK/IFA

Deputy Chief Justice of the Constitutional Court Aswanto when he was the key speaker at the Webinar on Law and Society Discussion THE SERIOUSNESS OF THE with the theme „The Role of the State in Facing the Covid-19 Pandemic Problem“ held by Al Azhar Islamic University on Thursday STATE TO PROTECT THE (11/6/2020). Photo: Public Relations / Ifa CONSTITUTIONAL RIGHTS OF THE PEOPLE

f it is guided by the norms of the In the activity moderated by The state must not neglect the rights constitution of the Indonesian state, the Lecturer at the Faculty of Law of its citizens, „Aswanto explained in the then the Government is serious in of the Islamic University of Al Azhar event which was also attended by the guaranteeing and protecting the Suartini Supensi, Aswanto gave material member of Bawaslu RI Rahmat Bagja constitutional rights of the people. entitled „Fulfillment of Constitutional as the next speaker. IThe rights stated in the constitution can Rights in the Covid-19 Pandemic“. He In this regard, as an example, be categorized as equivalent to human explained that Article 27, Article 28 Aswanto explained the implementation of rights, including the right to fulfill the to Article 28 J are basic norms related the Health Quarantine Law. According to economy and health during the handling to the constitutional rights of citizens him, the Government continues to strive to of the Covid-19 pandemic. This was which still need to be described in uphold human rights contained in it which conveyed by the Deputy Chairperson of the regulations below. For example, are also contained in the constitution. the Constitutional Court Aswanto when regarding this pandemic, continued However, what needs to be understood he was a key speaker at the Webinar Aswanto, how can the constitutional is that human rights are rights that have on Law and Community Discussion with rights of citizens regarding health existed and are inherent in humans from the theme „The Role of the State in guaranteed by the 1945 Constitution birth, while constitutional rights are rights Facing the Covid-19 Pandemic Problem“ be spelled out again in a regulation of that come from the government which held by Al Azhar Islamic University on the Minister of Health. can be taken back at any time. This Thursday (11/6/2020). This activity is „So in this case the country has means that the Government has the carried out virtually using the Zoom anticipated it. This means that even authority to determine which rights can application and broadcast directly on the though there is currently an emergency be prioritized in this health emergency, Youtube channel of the Constitutional in matters of public health rights, the without neglecting the role and presence Court of the Republic of Indonesia. state must still be present to fulfill it. of the state in it. SRI PUJIANTI

Number 160 • June 2020 19 ACTION HUMAS MK/IFA

Constitutional Justice Daniel Yusmic Pancastaki Foekh was the key speaker at the Webinar (web seminar), Tuesday (16/6) THE COVID-19 PANDEMIC at the Constitutional Court Building. Public IS A CONSTITUTIONAL Relations / Ifa Photo. ISSUE

onstitutional Justice Daniel Meanwhile in Indonesia, he said, of emergencies is currently in command Yusmic Pancastaki Foekh the Basic Law explicitly contains only and if it is linked to emergency was the key speaker at three articles, namely article 11, article constitutional law, the authority given a Webinar (web seminar) 12 and article 22 which regulate to the government in dealing with this with the theme „Law emergencies. However, in the event of a virus is temporary. The goal is how to CEnforcement and Human Rights (HAM) compelling crisis like this, the President return the emergency to normal again. During the Covid-19 Pandemic“. This has the right to stipulate government Furthermore, Daniel said, in an activity was organized by the Central regulations in lieu of laws (perppu). He emergency situation it is impossible Executive for the Indonesian Christian said that a perppu can change certain to expect the formation of a perppu Student Movement (GMKI), on Tuesday norms that exist in law. using the principle of forming legislation (16/6/2020) via virtual using the Zoom In addition, he also said that normally. Then, the Covid-19 outbreak application. in constitutional law, there must be that is currently happening is a condition On that occasion, Daniel explained provisions for two different legal where it is not known when it will end, that the problem of Corona Virus systems between an emergency and but this situation has an end. Daniel also Disease (Covid-19), which WHO calls a normal situation. „So actually, the said that the role of the community was a pandemic, is a constitutional issue. founding father already has a mindset needed in dealing with emergencies. „If you look at the constitutions in UN about this constitutional dualism,“ „Participation is also very important to member countries, there are several explained Daniel. deal with emergencies. So in a situation countries whose constitutions officially According to Daniel, all emergency like this, there is an implementation of state that this epidemic is a state of laws and perppu have existed since PSBB, community participation is also emergency,“ said Daniel. ancient times. It‘s just that the handling necessary, „he said. UTAMI

20 Number 160 • June 2020 HUMAS MK/GANIE

The Chief Justice of the Constitutional Court Anwar Usman was the keynote speaker in the National Tadarus event for DILEMMA OF REGIONAL the Regional Leadership Council of the Mataram National Movement Association (Regional Representative Council PGK), Friday (19/6) in the Meeting Room, Floor Floor. 11 HEAD ELECTION IN 2020 The Constitutional Court Building. Public Relations Photo / Gani.

f the Covid-19 pandemic conditions regional election voting which was out simultaneous regional elections from are faced with the implementation originally to be held on September 2015 to 2018,“ said Anwar. of the 2020 simultaneous regional 23, 2020 and has been changed to Furthermore, Anwar said the elections, then this is a very dilemma. December 9, 2020. success of South Korea in holding On the one hand, the state has the „If the 2020 Pilkada Simultaneously elections during the Covid-19 pandemic. Iobligation to fulfill the constitutional rights is held with due observance of Although the example is not apple of citizens in democracy. health protocols, there will be many to apple if you want to compare it „On the other hand, the state is also adjustments that must be made in to Indonesia, which has geographic faced with conditions for implementing each stage of the simultaneous regional conditions, population and voters health protocols, in order not to spread the election. The simultaneous adjustment and various other things that are not Covid-19 pandemic in society,“ said Chief of the pilkada implementation stage comparable to South Korea. „Even so, I Justice of the Constitutional Court (MK) is not an easy thing to do. Although it still want to be kind and think about it Anwar Usman who delivered a keynote also does not mean that it is impossible and invite all of us to continue to strive speaker on the topic „Are We Ready to to implement, „said Anwar in the event for the best for the nation and state. Carry Out Regional Elections Amid Covid. attended by Zoom participants, including As a Muslim, I believe in and adhere -19 ”in the event of Nationality Tadarus the Chairman of the DPP PGK Bursah to the word of Allah SWT in Surah Al- Regional Leadership Council of the Zarnubi and the Chairman of the Regional Baqarah verse 286 which states that National Movement Association (Regional Representative Council PGK Mataram Allah does not burden a person but is Representative Council PGK) Mataram. Arifudin, as well as the speakers, Ilham in accordance with his ability. He gets The activity which was held on Friday Saputra from the General Elections rewarded for the goodness he earns (19/6/2020) afternoon was carried out Commission and M. Afiduddin from and he gets tormented for the crimes virtually through Zoom. general election supervisory. he does, „explained Anwar. Anwar said that the Anwar continued, fulfilling Anwar believes, if every effort we implementation of the health protocol democratic rights for the people is the do is based on the intention of fulfilling is part of the fulfillment of public health state‘s obligation to implement it. Even the constitutional rights of every citizen, rights in accordance with the mandate so, the fulfillment of the constitutional and have been serious in working on it, of the Constitution. The challenges rights of citizens in democracy, always then our obligation as humans to do and choices in implementing the 2020 experiences different tests and challenges. business is over. Pilkada Simultaneously are indeed „We have indeed had experience since NANO TRESNA ARFANA heavy. There has even been a delay in 2005 to hold direct regional head elections the implementation of the simultaneous and we also have experience in carrying Number 160 • June 2020 21 ACTION HUMAS MK/GANIE

Constitutional Justice Saldi Isra was a resource person for the Training of Basic Competency Development for Legal ELECTION ADMINISTRATION Advocacy in the Implementation of the 3rd Generation Election for the Election Supervisory Body (Bawaslu) on Saturday FOR THE GENERAL (20/6/2020) morning through the Zoom application Photo: Public Relations / Gani ELECTION SUPERVISORY AGENCY

onstitutional Justice Saldi the UK there is an election, then the fill the legislative members, in the Isra was a resource person election is meant to elect members United States it is to elect members for the Training of Basic of parliament. The results of the of the senate, while in Indonesia it is Competency Development parliamentary elections will be used to elect members of the Parliament for Legal Advocacy in the as calculations to win over who will and Regional Parliament. This is also CImplementation of the 3rd Generation become the executive. In England it is to elect the President. „There are Election for the Election Supervisory called the prime minister, in Germany it countries that separate legislative Body (Bawaslu) on Saturday (20/6/2020) is called the chancellor, „Saldi explained and executive elections, and there are morning through the Zoom application to the officials of the Central Election countries that combine legislative and which was delivered from Saldi Isra‘s Supervisory Board, including Fritz executive elections. It depends on the residence in Jakarta. Edward Siregar and members of the country‘s presidential system. But in Saldi started the meeting by Provincial Election Supervisory Board. general, a presidential system built with explaining the system of government Apart from that, researcher Perludem a multiple or multi-party party system in effect in a country. „If we talk about Fadli Ramadhanil and Executive Director is strived to ensure that elections the parliamentary system, the elections of KoDe Initiative Very Junaidi were also are held simultaneously, „said Saldi, are basically meant to fill the members present, both of whom were speakers who presented material on“ Election of parliament. In the parliamentary for this event. Constitutionalism. system there are only elections to Unlike the presidential system, NANO TRESNA A. elect members of parliament. So if continued Saldi, elections in the for example in Malaysia, Thailand or presidential system are intended to

22 Number 160 • June 2020 HUMAS MK/IFA THE CONCEPT OF NATIONAL RESILIENCE PRIORITIZES NATIONAL SOLIDARITY

Deputy Chairman of the Constitutional he concept of national „Thus, the improvement of the Court Aswanto in the National Syawalan resilience must prioritize legal aspect in Indonesia is that if there and Gathering Forum organized by the Gajah Mada University Postgraduate School the principle of national and are citizens‘ rights whose constitutional National Resilience Study Program on Saturday (20/6/2020) through the Zoom state solidarity in accordance rights are neglected, norms are born that application. Photo: Public Relations / Ifa with Indonesian geopolitics. guarantee the sustainability of rights, TThis was the opening lecture delivered which are nothing but a manifestation by the Deputy Chairperson of the of national resilience in the field of law „A country with a democratic legal Constitutional Court Aswanto at the that carries out these guarantees,“ said system will create democratic life in all National Syawalan and Gathering Forum the alumni. The UGM Graduate School areas of life, and the democratization held by the Gajah Mada University National Resilience Study Program in of law is determined by the legal Postgraduate School National Resilience 1989 from his residence in Jakarta. development strategy adopted by a Study Program on Saturday (20/6/2020) On the basis of this, continued country, including our country Indonesia,“ through the Zoom Meeting application. Aswanto, it is necessary to organize explained Aswanto. With the theme „National Resilience state institutions aimed at obtaining In this activity, alumni who have Contribution to the Nation“, Aswanto an efficient state administration devoted themselves to various work explained that national solidarity is process capable of fostering democracy areas include Regional Secretary of actually the estuary of the awareness or people‘s sovereignty. The state Banten Province Almuktabar, Dean of and understanding of all components institutional system that meets these State University (Unnes) of the nation that national unity and requirements must be based on the Rodhiyah, Director of Procurement of regional unity are the best choices in concept of separation of power because the Bulog Forum Wibisono Puspitohadi, facing the future. That is, in an effort to it guarantees the functioning of the and Gajah Mada University National strengthen national unity, there must be checks and balances mechanism in a Defense Study Program Manager a guarantee of equitable welfare and a state government. Thus, law becomes Armaidy Arnawi. All of these speakers guarantee of the sustainability of the a subsystem in the system of state are the ones who further enliven the existence of the identity of every citizen, life, according to Joseph Raz in his book atmosphere of the online gathering including ethnic and regional groups in entitled „The Concept of A Legal System“ from various parts of Indonesia which facing the challenges and opportunities states that law will affect the work of are divided into three time zones. of globalization. other systems in state life. SRI PUJIANTI

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