Sunday, December 13, 2009

Perppu Questioning Corruption

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: the Daily Pikiran Rakyat, 19 September 2009.

THREE months before the end of the deadline given the Constitutional Court (MK) which obliges the government and Parliament established the Corruption Court Act no later than December 19, 2009, Bill (Bill) Corruption Court had not yet completed. In the process many predict, the Bill will not be completed until the expiration of the House of Representatives members of the House of dedication period 2004-2009. Now, the developing discourse on the existence of the Corruption Court could have been saved, with the issuance of a replacement government regulation law (Perppu). This discourse is warming again when the presidential candidate debate in past presidential election, all presidential candidates agreed to remove Perppu if Parliament does not successfully complete the draft Corruption, in accordance with the deadline.

In our constitutional system, Perppu explicitly recognized as one form of legislation. In Law No.10 Year 2004 on the Formation of Legislation Regulations, Perppu placed parallel / equivalent to the Act. Article 22 UUD 1945 also states that. If you use a way of thinking of Article 22 UUD 1945 before the change is the right Perppu emergency (noodverordeningsreht) president to enforce government regulations with substance-level law rules. Regulation is necessary to ensure the safety of the state in a precarious situation, which forced the government to act quickly and fast. The problem lies not in existence, but the arguments that can justify the presence of Perppu as emergency power, to issue a government regulation to level the substance of the Act. The reason for this becomes very important because Article 22 paragraph (1) of the 1945 Constitution requires state or happenings that force crunch.

In view Jimly Asshiddiqie (2002), the terms "compelling urgency" in the constitutional practice, often causing widespread interpretation. In practice enough Perppu defined, but the circumstances that forced urgency on which the establishment is not clear, even not being met. Bagir Manan in Political Theory and Constitution (2004) says, "Happenings crunch that forced" is a condition that is the basis of constitutive authority in setting Perppu president. If not able to show the real conditions that state, the president has no authority to set Perppu. Perppu determined without Happenings crunch that forced null and void (null and void), because it violates the principle of legality is made without authority. Happenings crunch that forced also to show some of the terms of the crisis, which caused harm or actual barriers to the smooth running of government functions. Therefore, the charge Perppu limited to implementation (administratiefrectelijk) rather than administrative areas (staatsrechtelijk).

In theory, AALF van Dullemen (1947) in his book Staatsnoodrecht en democratie (as quoted Mahfud MD, 2006) explains, there are four conditions that justify the existence of the emergency law (staatnoodrecht), the four conditions, namely (1) depends on the existence of the state of emergency action , (2) action is necessary and can not be replaced by another, (3) temporary (valid at all in a short time to simply normalize the situation, and (4) when action is taken, the parliament can not convene for real, and real - really. Dullemen According to the four conditions mentioned above are cumulative. If one of the requirements are not met, the emergency law should not be there.

Rests on the view Jimly Asshiddiqie, Bagir Manan, and AALF van Dullemen, honestly should be recognized for the determination of the Corruption Court Perppu later, admittedly not entirely in accordance with the theory they put it, especially the theory of our constitutional law. At least there are several reasons that it was based. First, the existence of the state does not depend on the Perppu to be issued. Without Perppu Corruption Court, the existence of this republic is still awake. Actual corruption cases should not be viewed as a crisis, which caused significant inhibition of the sustainability of state and government performance.

Second, the action can still be issued Perppu replaced with other measures. If we look at the history of the formation of the Corruption Court, the court was made because of public distrust of the performance of the general courts and prosecutors in dealing with corruption. Thus, even if none Corruption Court, we are still able to streamline the institutions of law enforcement such as police, prosecutors, and public justice to eradicate corruption.

The third, the House actually had time and opportunity to complete the Corruption Bill. What is needed is political will and political action from members of the House of Representatives 2004-2009 period, to complete the discussion of the Corruption Court bill. In this way, the ideals of the Corruption Court that will have binding legal force can be achieved, for the eradication of corruption.

Finally, I personally do not agree there is not the Corruption Court in the judicial system in Indonesia. However, the government should really consider Perppu mature birth. Because, if this is not addressed properly, raised concerns that the future will be born many Perppu issued "at random" by the government and does not reflect the situation ikhwal crunch situation, the force and meaning according to the mandate contained in Article 22 of the 1945 Constitution.

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