Ridarson Galingging, Jakarta
Emergency powers are an extremely sensitive legal and political matter because they allow heads of state to suspend normal democratic procedures. If used properly, they are justified as a response to a real emergency that cannot be handled any other way. If abused, they constitute a slip back into authoritarianism. Citizens in new democracies must guard against and reject such abuses.
It is obviously good to have emergency powers available in case of an emergency. Less obvious is what constitutes an ""emergency."" This is something civil society, the legislature, and the courts must debate and define. The definition sets the limits on potential abuses of executive power. No such debate or definition has occurred in Indonesia.
Corruption is a huge problem in Indonesia. Transparency International recently ranked Indonesia as the sixth most corrupt country in the world, with judicial corruption ranked as the worst among 19 Asian countries surveyed.
Not every serious or chronic problem constitutes an emergency. Widespread poverty and endemic corruption are severe problems. But regrettably, they are also quite ""normal"" in the Indonesian context in the sense that they are pervasive and a part of the daily life of the nation.
Just because citizens are deeply frustrated with a problem and have made very little progress in solving it does not mean that the situation constitutes an emergency. By its very character, an emergency is an unusual disruption that arises rather suddenly and requires extraordinary and urgent executive action to address it.
Although rampant corruption, including in the judiciary, has been a damaging and debilitating problem for decades in Indonesia, such corruption does not meet any reasonable or international standard for a ""state of emergency.""
Corruption should be fought vigorously through existing police and legal procedures, whether the perpetrator is a judge or in any other branch of government. Invoking emergency powers is unjustified legally and dangerous politically.
Constitutions in most democratic countries usually provide detailed rules on the important question of under what circumstances emergency powers can be invoked. Indonesia's amended 1945 Constitution allows for emergency powers in the event of a ""public emergency which threatens the life of the nation,"" but does not define or elaborate on the matter further.
In Article 22 (1), the Constitution states that the Executive branch can introduce a government regulation (perpu) in lieu of a law for kegentingan yang memaksa (compelling urgent matters) and ""emergency situation,"" or a ""state of necessity.""
The State Emergency Law of 1959 makes specific mention of rebellions, riots and natural disasters as emergency situations, but mentions nothing about corruption.
In actual practice, the Indonesian executive branch has already started making wide and alarming use of these regulations in lieu of law. They have been used to act quickly on a range of political and economic problems including forestry, regional government and amending the bankruptcy laws and manpower laws. None of these situations rose to the standard of a ""public emergency that threatens the life of the nation.""
Given that the limits on emergency powers are poorly defined and those powers are already being misused for chronic problems rather than actual emergencies, where can Indonesia turn for clearer guidelines on what constitutes a state of emergency?
International law provides an excellent starting point. The International Covenant on Civil and Political Rights (ICCPR) and its jurisprudence were ratified by Indonesia and thus became Indonesian law based on Article 15 (2) of Law No. 24/2000 on International Treaties.
Corruption is costly and creates many economic difficulties. But the ICCPR does not regard economic difficulties alone as a public emergency threatening the life of the nation.
Does a public emergency grant unrestrained authority to the executive to disrupt the normal operation of tripartite government? More specifically, is it justified for the executive branch to fire or replace all members of parliament and the judiciary for being accused of committing corruption?
In most democratic constitutions, the executive branch has the right to declare a state of emergency. But the declaration is subjected to parliamentary approval and judicial review. Emergency rule is a legal regime governed by the principles of legality of administration, based on the rule of law.
In the case of Indonesia, the country's constitution clearly does not authorize the executive branch to suspend or interfere with the normal operations of the other branches of government, the House of Representatives (DPR) and the judiciary or to permit derogations from fundamental rights when emergency rule applies.
The constitutional provisions remain in effect at all times, including the provision on the independence of the judiciary, whether in times of peace or war.
Widespread corruption within the judicial system does not meet the legal requirements or threshold for a ""public emergency"" within the meaning of the ICCPR jurisprudence, unless, in exceptional circumstances, widespread social and political unrest occur.
It is laudable that the Indonesian president wants to do everything he can to fight corruption, but fighting corruption is not the only issue that matters in Indonesia; and it certainly is neither separate from nor more important than establishing the rule of law and limiting the potential for abuses of executive power -- itself a major problem in Indonesia's modern history.
There are police, investigators and prosecutors available within Indonesia's non-emergency legal structure to go after ""big fish"" corruptors both inside and outside the judiciary. Issuing a regulation in lieu of law to fight corruption is itself corruption, and an abuse of emergency power provisions in the Indonesian Constitution.
The writer (r-galingging2004@law.northwestern.edu) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.
