KULIAH HTN - HUKUM DARURAT NEGARA - PROF NI'MATUL HUDA

Summary

This lecture discusses the legal frameworks surrounding emergency powers in Indonesia, particularly focusing on constitutional provisions related to 'emergency law' as outlined in Articles 12 and 22 of the 1945 Constitution. It covers various types of emergencies such as civil, military, and war emergencies, and the president's authority to declare these situations. The speaker explains the conditions under which emergency regulations (Perpu) can be enacted, the approval process by the DPR (Indonesian Parliament), and the implications for governance. The lecture also touches on how such powers have been applied in past cases like the counterterrorism law and the Hizbut Tahrir Indonesia ban.

Takeaways

• 😀 The lecture focuses on the constitutional framework for emergency law in Indonesia, particularly Articles 12 and 22 of the 1945 Constitution.
• 😀 The President has the authority to declare an emergency based on specific conditions outlined in the Constitution.
• 😀 There are three types of emergencies discussed: civil emergency (e.g., pandemics), military emergency (e.g., significant public disturbances), and state of war (e.g., threats to national security).
• 😀 Article 12 of the Constitution gives the President the right to declare an emergency, but it doesn't provide detailed procedures for implementation.
• 😀 Article 22 allows the President to issue Perpu (Government Regulations) during emergencies, which must later be approved by the People's Representative Council (DPR).
• 😀 The declaration of an emergency is based on the President's subjective judgment, but the legality is reviewed and must be confirmed by the DPR.
• 😀 Perpu issued by the President in emergencies have the force of law, but they must be approved or rejected by the DPR in the next legislative session.
• 😀 The President cannot unilaterally change or revoke a Perpu once it is issued; only the DPR can amend or annul it through legislation.
• 😀 The lecturer highlights past precedents, such as the anti-terrorism laws and the Hizbut Tahrir regulation, where Perpus were reviewed by the Constitutional Court for constitutionality.
• 😀 The importance of balancing executive power and legislative oversight is emphasized to avoid misuse of emergency declarations that may undermine public rights.
• 😀 Students are tasked with analyzing whether the COVID-19 pandemic could justify a civil emergency declaration and writing a paper exploring the legal implications of emergency law in this context.

Q & A

What is the main topic discussed in the transcript?

The main topic discussed in the transcript is 'Hukum Darurat Negara' (State of Emergency Law) in Indonesia, specifically focusing on Articles 12 and 22 of the Indonesian Constitution (UUD 1945), which govern the declaration of states of emergency and the associated powers of the President.

What does Article 12 of the Indonesian Constitution state regarding a state of emergency?

Article 12 of the Indonesian Constitution states that the President can declare a state of emergency, and the conditions and consequences of such a declaration must be regulated by law. It outlines that the President can act swiftly without needing approval from other authorities in certain emergencies.

What is the significance of Article 22 in the context of a state of emergency?

Article 22 allows the President to issue a Peraturan Pemerintah Pengganti Undang-Undang (Perpu) as a substitute for legislation during times of emergency. It specifies that such a regulation must be approved by the DPR (People's Representative Council) in the next parliamentary session, ensuring that the actions taken by the President are subject to legislative oversight.

How does the lecturer differentiate between civil, military, and war emergencies?

The lecturer distinguishes between civil, military, and war emergencies based on their causes and the response required. A civil emergency might include widespread public health crises like pandemics (e.g., COVID-19). A military emergency involves civil unrest or threats to government institutions, while a war emergency pertains to external threats from foreign nations or entities.

What are the three types of emergencies outlined in the lecture?

The three types of emergencies discussed are civil emergencies (e.g., pandemics), military emergencies (e.g., civil unrest affecting government structures), and war emergencies (e.g., threats from foreign nations or conflicts).

Why is the President given the power to declare an emergency under Article 12?

The President is granted the power to declare an emergency under Article 12 to ensure swift action can be taken in urgent situations without waiting for parliamentary approval, especially when the emergency conditions may require immediate governmental intervention.

What does the lecturer say about the subjective nature of the President's powers under Article 22?

The lecturer notes that the powers granted to the President under Article 22 are somewhat subjective, as the 'emergency conditions' that justify issuing a Perpu depend on the President's assessment. This subjective decision is then subject to the approval or disapproval of the DPR in the next parliamentary session.

How does the Indonesian Constitutional Court (Mahkamah Konstitusi) influence the use of Perpu?

The Mahkamah Konstitusi plays a role in reviewing Perpu's to ensure they are in compliance with the Constitution. For example, in past cases, such as the antiterrorism law, the Court ruled that certain Perpu's were unconstitutional if they violated constitutional principles like the prohibition on retroactive laws (Pasal 28I).

What is the role of the DPR in approving Perpu issued by the President?

The DPR's role is to approve or reject Perpu issued by the President. After a Perpu is declared, it must be presented to the DPR in the next parliamentary session, where it is subject to review and approval. If the DPR disapproves, the Perpu is invalidated.

How does the lecturer suggest the COVID-19 pandemic might be handled legally under Indonesian emergency laws?

The lecturer suggests that the COVID-19 pandemic could potentially be handled under the 'civil emergency' provisions, where the President might declare a state of emergency and issue a Perpu to manage the crisis. However, the lecturer also questions whether the situation fully meets the legal criteria for an emergency, urging students to critically assess the situation.