Position of Government Regulations for Replacement of Laws in

Construction of Democracy Law State

Ellydar Chaidir and Moza Dela Fudika

Faculty of Law, Universitas Islam Riau, Pekanbaru, Indonesia

Keywords:

Position, Government Regulation of Law, Democracy

Abstract:

The phrase ”compulsive urgency” has a multi-interpretive understanding and is the authority of the President

to interpret the compulsive crises in forming government regulations instead of laws. In essence, in setting

government regulations instead of laws, there must be an objective limitation on the compulsive crunch. Al-

though the Decision of the Constitutional Court Number 138 / PUU-VII / 2009 has stated that compulsive

crises must fulﬁll 3 (three) conditions, namely the existence of a situation that is an urgent need to resolve le-

gal issues quickly based on the law, the required law does not yet exist so that there is a legal vacuum or there

are laws but it is inadequate and the legal vacuum cannot be overcome by making law in the usual procedure

because it will take a long time. However, this has not been able to provide a benchmark for the meaning of

the crunch that forced it to be proven by the issuance of Perpu No.2 of 2017 concerning the dissolution of

Community Organizations.

1 INTRODUCTION

Constitutionally based on Article 22 paragraph (1) of

the 1945 Constitution of the Republic of Indonesia

it was stated that ”In the event of a compelling matter

of urgency, the President has the right to set govern-

ment regulations instead of the law.” The question that

arises is what conditions are said as a matter of the

force of the force. In terms of the president’s power

in carrying out his duties as head of government, the

president’s right to issue a Government Regulation in-

stead of Law (PERPU) is considered subjective be-

cause of a unilateral presidential judgment on behalf

of the government to determine the state in danger or

matters of urgency . PERPPU is a regulation which

in terms of its contents should be stipulated in the

form of a law but because of the forced state of cri-

sis stipulated in the form of a government regulation

(Asshidiqie, 2008).

The assessment can only be objective if PERPU

has been discussed to be agreed together with the

House of Representatives (DPR) to be mutually

agreed to become a law. As referred to in Arti-

cle 22 paragraph (2) of the 1945 Constitution which

reads ”The Government Regulation must obtain the

Undang-Undang Dasar Negara Republik Indonesia

Tahun 1945

approval of the House of Representatives in the trial”.

Theoretically PERPU, based on the hierarchy of laws

and regulations, is at the same level as the Law. So

that it can be concluded that PERPU has a very domi-

nant position in the construction of a democratic legal

state because PERPU has a very broad impact on the

rights held by Indonesian citizens.

The formation of the PERPPU can be considered

to make the state tend to appear authoritarian due to

the actions of the government that gave birth to the

PERPPU with ”crunch matters” which have multiple

interpretations so that they can injure democratic val-

ues in the construction of the Indonesian law. Al-

though the Constitutional Court has interpreted the

sentence was the matter of urgency to force in the de-

cision of the Constitutional Court with case number

No. 138 / PUU-VII / 2009 which stipulates three cat-

egories of compulsive crises, but has not provided a

measure of the meaning of the force of force. The

crucial issue of the existence of the PERPPU can also

be seen from the birth of PERPPU No. 2 of 2017

concerning the dissolution of many community or-

ganizations that have received an assessment that the

government has carried out an authoritarian action be-

cause of its multiple interpretations of the urgency of

Peraturan Pemerintah Pengganti Undang-Undang

Nomor 2 Tahun 2017 Tentang Perubahan Undang-Undang

Nomor 17 Tahun 2013 tentang Organisasi Kemasyarakatan.

228

Chaidir, E. and Fudika, M.

Position of Government Regulations for Replacement of Laws in Construction of Democracy Law State.

DOI: 10.5220/0009105302280232

In Proceedings of the Second International Conference on Social, Economy, Education and Humanity (ICoSEEH 2019) - Sustainable Development in Developing Country for Facing Industrial

Revolution 4.0, pages 228-232

ISBN: 978-989-758-464-0

force in Article 22 paragraph (1) 1945 Constitution of

NKRI.

2 DISCUSSION

2.1 Legal Aspects of Government

Regulations Law Replacement

Hierarchically all types of legislation have certain

functions. But in general, according to Bagir Manan

the function of the legislation is divided into 2 (two)

main groups (Halim and Putera, 2013), namely:

1. Internal function, namely the function of legisla-

tion as a legal sub-system of the rule of law sys-

tem in general. Internally, legislation runs several

functions including:

a The function of the creation of law (rechtschep-

ping) which gives birth to a generally accepted

legal system of law or occurs in several ways,

namely through judicial decisions, habits that

arise in practice in public or state life, and leg-

islation. In Indonesia, legislation is the main

way of creating law.

b Legal renewal function. Establishment of legis-

lation can be planned, so that legal reform can

also be planned. The function of renewal of leg-

islation is, among others, in order to replace the

Dutch legislation and national legislation that is

no longer in line with new needs and develop-

ments.

c The function of integration of legal system plu-

ralism. The pluralism of the legal system that

prevails today is one of the colonial legacies

that must be reorganized. The renewal of the

national legal system is in order to integrate the

various legal systems so that they are arranged

in a harmonious order with each other.

d Legal certainty function. Legal certainty is an

important principle in legal action and law and

regulation can provide legal certainty that is

higher than customary law and customary law

or jurisprudence.

2. The external function is the linkage of legislation

with the place of effect. External functions can

also be called socio-legal functions (Siallagan and

Yusdiansyah, 2008), and can be divided into:

a Function of change. The function of change

is law as a means of social engineering where

laws and regulations are created or formed to

encourage changes in society in the economic,

social and cultural ﬁelds

b Stability function. Laws and regulations in the

ﬁeld of criminal, order and security are rules

which are primarily aimed at ensuring the sta-

bility of society

c Convenience function. The convenience func-

tion can function as a means of regulating vari-

ous regulations that contain incentives, such as

tax breaks.

In essence, based on Article 7 paragraph (1) of

Law Number 12 of 2011 concerning the Establish-

ment of Legislation Regulations

stating that: ”The

type and hierarchy of Legislation Regulations consists

of:

a 1945 Constitution of the Republic of Indonesia

b Decree of the People’s Consultative Assembly

c Substitute Government Laws / Regulations

d Government regulations

e Provincial Regulation; and’

f District Regulation

For the sound of the article, it can be concluded

that PERPPU has a position parallel to the Law so that

the functions of the legislation referred to above are

also related as a function of a PERPPU. In addition,

according to Maria Farida Indrati Soeprapto, because

this perppu is a government regulation that supersedes

the law, the content of the material is the same as the

material contained in the law (Indrati et al., 2008).

PERPPU is a government regulation that acts as an

Act or in other words, PERPPU is a government reg-

ulation that is given the same authority as law. The

formation of the PERPPU was purely the authority

of the president because of its formation without ﬁrst

asking for approval from the House of Representa-

tives (Manan, 1992), although in the end it had to

be discussed together to get mutual approval from the

president and the House of Representatives (Haryono,

2009).

2.2 Key Terms of Establishment of

PERPU

Constitutionally the conditions for establishing

PERPU will only be found in Article 22 paragraph

(1) of the 1945 Constitution of the Republic of In-

donesia

, that only in the event of a compulsive cri-

sis, the president can issue PERPPU. PERPPU which

Undang-Undang Nomor 12 Tahun 2011 Tentang Pem-

bentukan Peraturan Perundang-Undangan

Undang-Undang Dasar Negara Republik Indonesia

Tahun 1945

Position of Government Regulations for Replacement of Laws in Construction of Democracy Law State

229

was born later was signed by the president. PERPPU

has a limited (temporary) period of time.

The main requirement for the formation of

PERPPU can also be seen in Article 1 number 4 of

Act No. 2 of 2011 which only states that the main

requirement for the stipulation of the PERPPU is the

issue of compulsive crises, but in the Law the explana-

tion section does not explain the terms and passed to

form a PERPPU. So that it can be concluded that the

conditions for making PERPPU are merely the sub-

jective judgment of the president or the government

stating the state of the country in a state of urgency or

in an emergency

2.3 The Crunch of the Forcing in the

Issuance of PERPU (Based on the

Decision of the Constitutional Court

Number 138 / PUU-VII / 2009

During this time there was no clear boundary about

”compulsion”. As a result there is no single interpre-

tation of the birth of the Perppu. In this context the

decision of the Constitutional Court No. 138 / PUU-

VII / 2009. Judicially, the Constitutional Court as-

sessed whether actually PERPU was equal to the law

so PERPU could be tested at the judicial institution

of the Constitutional Court. Based on Article 7 para-

graph (1) of Law Number 12 of 2011 it is stated that

PERPU itself has an equal position with the law.

Article 22D paragraph (1) of the 1945 Constitu-

tion which essentially states that:

1. Granting authority to the president to form gov-

ernment regulations instead of the law

2. The authority can only be used if the situation is

in a situation of compulsive crises.

3. PERPU must obtain the approval of the House

of Representatives for further hearings which de-

termine whether PERPU becomes a law or is re-

voked.

In the situation where there is a vacant position the

existence of a law caused by various things so that the

draft law has not been processed to be followed up as

a law based on the applicable provisions, but in such

conditions, there is a legal vacuum then arises which

is said to be a state urgent (urgent) so that immediately

requires a law to overcome this. Then the provisions

of Article 22 of the 1945 Constitution provide a spe-

cial institution by giving authority to the president as

head of government to make PERPU a form of over-

coming the occurrence of legal vacuum in the country

(Mawuntu, 2011). If you follow the mechanism for

drafting a law in a rule, the problem of legal vacuum

will not be able to be answered because time in mak-

ing legislation will take a long time, starting from the

planning stage to the ﬁnal stage, namely enactment in

gazette.

Based on the consideration of the Constitutional

Court’s ruling, it can be concluded that the notion

of ”matters of urgency that are compelling” accord-

ing to the interpretation of the Constitutional Court

is not only about the danger but also must be inter-

preted in conditions that must meet 3 (three) condi-

tions, namely:

1. There is a situation that is an urgent need to solve

a legal problem in a fast way

2. The law needed to resolve the problem does not

yet exist so that there is a legal vacuum

3. The legal vacuum cannot be overcome by making

laws with ordinary procedures because it will take

a long time

Based on the formulation of Article 22 paragraph

(1) of the 1945 Constitution, it is clear that the state-

ment ”President has the right” is impressed that the

issuance of PERPU is seen as subjective because it

is a right and fully under the control of the presi-

dent. However, the Constitutional Court ruling No.

138 / PUU-VII / 2009

is what should provide an

explanation and enlightenment regarding the bench-

marks of what is said to be a compelling situation or

a precarious situation in a country. And even though

the Constitutional Court’s decision has been issued,

it has not been able to give the true meaning related

to the intention of the compulsive crunch. So that

after the issuance of the verdict of the constitutional

court the presence of a PERPU today still has a shared

view of where the meaning of urgency intended by

the president as the subject given the authority to is-

sue PERPU. As an example of the issuance of PERPU

regarding the dissolution of community organizations

which also invited public sentiment and became con-

troversial in the level of public opinion.

2.4 Published Analysis PERPU No.2 of

2017 Concerning Community

Organizations

PERPU No. 2 of 2017 concerning Community Orga-

nizations has spawned good debate among academics,

practitioners and the public who stand on the pro and

contra positions which have implications for inter-

esting political dynamics in the Indonesian constitu-

tional system. Through this PERPU, the government

Putusan Mahkamah Konstitusi Nomor 138/PUU-

VII/2009.

ICoSEEH 2019 - The Second International Conference on Social, Economy, Education, and Humanity

230

actually made PERPU as an instrument to control the

existence of social organizations within the Unitary

State of the Republic of Indonesia. The issuance

of PERPU as if it seems that the policies issued by

the government in issuing PERPU tend to be one-

sided and subjective. The condition of the compulsive

crunch has not yet fully become a proven condition in

the midst of society. Through PERPU, the govern-

ment also revoked the existence of Community Or-

ganizations, namely Hizb ut-Tahrir Indonesia, which

was considered to be in conﬂict with Pancasila.

Government policies that issued PERPU have not

been fully accepted due to the difﬁculty of measur-

ing precarious conditions due to the existence of HTI

organizations and the absence of concrete indicators

and can measure the extent to which community or-

ganizations are in line with Pancasila values so that

the boundaries become vague and seem to be being

a one-sided subjective judgment in assessing the pre-

carious situation. If reviewed further, the existence of

HTI at the time before it was dissolved has not been

said to be alarming, because there has not been an ac-

tive movement carried out by HTI which could cause

the matters of crisis as intended by the government.

The lack of government aspirations for the disso-

lution of HTI organizations has also become the pub-

lic’s main spotlight. The government only listens to

the voices of one party claiming that the existence

of HTI endangers the integrity of the unitary state of

the Republic of Indonesia. The opinions of various

groups are certainly needed to provide an assessment

of the existence of HTI so that there is sufﬁcient in-

dicator that HTI organizations can create a danger for

the integrity of the country of Indonesia. Regarding

this, Dr. Jeje Zaenudin as deputy general chairman of

PP Persatuan Islam writes:

“The irregularities are also getting stronger

when the government bases the dissolution

of HTI because it often collides with other

mass organizations in the community. In fact,

only recently has HTI activities been pre-

vented from being obstructed and disbanded

by a particular mass organization that manip-

ulates it. With other mass organizations, such

as Muhammadiyah, Persis, Al Irsyad, PUI,

etc., HTI remains harmonious, there must be

differing views on several aspects of Islamic

teachings, especially the concept of khilafah

(Riadi et al., 2017)”

Besides that, PERPU No.2 Year 2017 also gives

constitutional authority to the government to dissolve

the existence of community organizations that are

deemed inappropriate. Juridically, matters concern-

ing the dissolution of mass organizations are in the

hands of the court as the holder of the judicial author-

ity based on the theory of power sharing initiated by

Montesqui. Indirectly, the government automatically

has taken over the authority rather than the judicial

power which is under the authority of the Supreme

Court, which prior to the issuance of PERPU the au-

thority to dissolve the existence of social organiza-

tions was in the hands of the court. Based on these

problems, the issuance of PERPU No. 2 of 2017

gives the impression of the current dictator of the

government, in addition to not measuring the indica-

tors of the state of urgency that forced the issuance of

PERPU, the government has deviated its power as the

holder of executive power by overthrowing judicial

power in the dissolution of community organizations.

And in the author’s opinion, this problem would tend

to make new problems oriented to the division of eth-

nicity, race, religion, and culture that exist in Indone-

sia because of the existence of issues related to radi-

calism at the level of nation and state. So that it can

be concluded that with the birth of PERPU No. 2 of

2017 there has been an injury to the value of democ-

racy and the concept of separation of powers.

3 CONCLUSIONS

The phrase ’compulsive urgency’ in the background

of making Government Regulations Substituting the

Law does not yet have a judicial objective measure.

The authority in the issuance of PERPU is still ori-

ented to the constitutional subjective rights of the

president given by the 1945 Constitution of the Re-

public of Indonesia. The Constitutional Court Deci-

sion Number 138 / PUU-VII / 2009

has not been

able to answer the explanations of state benchmarks

in matters of compulsion. So that with the birth of

polemic against PERPU No. 2, 2017 is still an inter-

esting concern from a political and legal standpoint.

With regard to the urgency of the existence of mass

organizations that are considered inconsistent with

the ideological values of the nation, namely the Pan-

casila. So that PERPU’s position is still considered

as a frame for a government that leads to an authori-

tarian government. It is recommended that the Gov-

ernment and Parliament to emergency situation and to

make use Presidential Advisor Board so that issuance

of government regulation to subtitute act the meets

Peraturan Pemerintah Pengganti Undang-Undang

Nomor 2 Tahun 2017 Tentang Perubahan Undang-Undang

Nomor 17 Tahun 2013 tentang Organisasi Kemasyarakatan.

Putusan Mahkamah Konstitusi Nomor 138/PUU-

VII/2009.

Position of Government Regulations for Replacement of Laws in Construction of Democracy Law State

231

the principles of democracy rule of law and public ac-

countability (Almanar et al., 2015).

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