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(DOC. INDEPENDENT OBSERVER)

Power Imbalance 

The 1945 Constitution plays a strategic role in civic life. State power, exercised by state institutions, is limited by the Constitution, preventing it from being wielded arbitrarily. The Constitution also governs the rights and responsibilities of the citizens, to ensure that they are fulfilled. 

The separation of powers and functions stipulated in the 1945 Constitution is in line with Montesquieu’s arguments in his famous Trias Politica theory, which divides the Government into three independent branches, namely the legislative (House of Representatives/DPR, Regional Representatives Council/DPD and People’s Consultative Assembly/MPR), executive (president), and judiciary (Supreme Court/MA, Constitutional Court/MK and Judicial Commission/KY), with the aim to maintain a balance of power, thus preventing any one branch from becoming too powerful. 

Karl Loewenstein in his book “Political Power and the Governmental Process,” states that the Constitution is a means to oversee political processes. Therefore, every constitution always has two objectives, namely to impose restrictions and control over political processes, and to prevent the power of the ruler from becoming absolute. 

The President is vested with Article 22(1) of the 1945 Constitution, with the power to issue a Perppu in the event of “compelling emergencies.” However, paragraph 2 also requires the Government to seek approval for the Perppu from the House in the subsequent session. If approval is not granted, for the sake of legal certainty, the Perppu must be rescinded. 

Although Article 22(1) of the 1945 Constitution gives the President a prerogative to determine what constitutes compelling emergencies, the subjectivity of the President is restricted by MK Decision 138/PUU-VII/2009 which states that the subjective assessment of the President must be based on three parameters, namely: 

Firstly, a situation where there is an urgent need to resolve legal issues quickly, based on the law. Secondly, the required law has yet to exist or is insufficient, thereby creating a legal vacuum. Thirdly, the legal vacuum cannot be addressed through the normal legal drafting process because it will take a long time, while the urgent situation calls for urgent action. 

Article 24C(1) of the 1945 Constitution mandates that MK has the authority to adjudicate laws against the Constitution at the first and final instance, and the decision is final. This means the Government must abide by MK decisions. 

The status of MK decisions is further strengthened in Article 10 and Article 11 of Law 12/2011. Article 11 stipulates that the material content of the Perppu must be the same as the material content of the law it replaces. And in reference to Article 10, one of the material contents of the law is a follow-up to the MK decision. This means that the material content of a Perppu is a follow-up to MK decision. 

Using the case of the Ukraine war, the threat of inflation and stagflation as a reason to legitimize the issuance of Perppu 2/2022 is not an objective argument, according to MK Decision 138/PUUVII/2009. 

Of the three objective parameters, the closest one to address the situations as mentioned is the urgent need to resolve a legal impasse. However, as the Job Creation Law and its implementing regulations remain in effect, there is actually no urgency for a piece of legislation to deal with the impacts of a Ukraine war, inflation threat and stagflation risk. 

Thus, Perppu 2/2022 is inconsistent with the spirit of the 1945 Constitution, in creating a balance of power between the executive, legislative and judicial branches. Instead, it has created a power imbalance if the authorities of MK as vested by the 1945 Constitution can be easily and deliberately intervened with by the Government. 

The Executive should respect and implement MK Decision 91 and 138 to maintain the principle of separation of powers as mandated by the 1945 Constitution and the finality of MK rulings. 

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