21 September 2009

Is A PERPU A Law?

There is current debate in the cyberworld over at Politikana as to the nature of a PERPU. A PERPU is Peraturan Pemerintah Pengganti Undang-Undang. This is translated as Government Regulation In Lieu of Law which is literally what it says. However, when I translate it I always use the term "Interim Law". The simple rationale here is that the regulation is put into place to act as a law and behaves as a law for a defined period of time.

This debate has come about as the President of the Republic of Indonesia, one Susilo Bambang Yudhoyono, has decided that the best way to deal with the current conflict between the police and the Corruption Eradication Commission (Komisi Pemberantasan Korupsi / KPK) is to issue a PERPU to replace the KPK commissioners that have become non-active as a result of being declared suspects in an investigation of alleged criminal activity (this will be the subject of another post).

Getting to the legal nitty gritty. The Law on Legislation Drafting (Law No. 10 of 2004 on Pembentukan Peraturan Perundang-undangan) in Article 7 lists the hierarchy of laws and regulations in Indonesia. This places a PERPU under the 1945 Constitution but on the levle of a law (undang-undang). This would seem to resolve any dispute about where the PERPU fits and the intent, or understanding of the Parliament, as to the function of a PERPU.

Nevertheless, a PERPU has really limited use. A PERPU can only be issued in a moment of crisis or emergency. Now, this is where it all becomes a little subjective and discretionary. It depends on who is making the decision as to whether something is an emergency or not. In any event, Article 25 of Law No. 10 of 2004 requires that a PERPU be submitted (normally in the form of a Bill) to the next sitting of parliament. At this point the DPR gets the opportunity to pass the Bill (former PERPU) into law or reject it. If the DPR rejects the bill or decides to bounce it around for a while then the PERPU by default expires and there is a return to the previous incarnation of the law.

It is debatable as to whether the current situation with the KPK is an emergency for the purposes of a PERPU. There are obviously those for and against the proposition. I am against it. I do not believe that the current situation warrants a PERPU in order to resolve the conflict. Appointing commissioners to the KPK through a PERPU runs counter to the idea of independence that the KPK is supposed to enjoy from political interference. It is clear that the KPK commissioners are some of the most vetted individuals to date in Indonesia. To then make them a presidential appointment begs the question, "who will prosper in a scenario of political / presidential appointments to a corruption eradication body?" The answer to that question might tell one why a PERPU is being touted as the best possible option.

A PERPU is by default a law, but a law of restricted use and of limited value.

At least in my humble opinion. So, as "Big" John McCarthy used to say in UFC, "Let's get it on!"

5 comments:

H. Nizam said...

Hi Rob,
Very good explanation.
Perpu, also called UU Darurat (Emmergency law), can be issued only in times of emergency regarding matters that are very urgent for the country. Normal lawmaking procedure through DPR would cause great obstacle for settlement of the matter.
Re: RUU Tipikor
The DPR actually has lots of time, which can be seen from the fact that they passed many 'less urgent' bills into law in the last one week. If the government really pushed the DPR much harder, it can be finalized.

anong said...

Im often perplexed by phrases like Pasar Inpres. A presidential instruction to build a market - who'd ever challenge that!!

Rob Baiton said...

Harry...

Thanks.

Maybe pushing the Tipikor law through the DPR has been a problem because the bill is problematic.

The idea of drafting in a couple of political appointees of the president through a perpu is also problematic.

The DPR is what it is. I am not sure that the government can drive legislation through. It will be interesting to see how the next parliament does.

With everyone wanting to be a part of the coalition then there is not going to be a whole lotta opposition.

Anong...

For me, an Inpres is not really worth that much in the big scheme of legislation.

It really is just a way for the president to say this is what I want to happen based on these broad policy goals, now get to it.

ANONG said...

INteresting....

Jangan sekali-sekali melupakan sejarah, atau Jas Merah, itu salah satu judul pidato Sukarno yang populer. Sukarno memang jagoan membuat jargon-jargon menarik untuk pidato. Karena itu, ijinkan saya menggunakan jargon menarik ini untuk mengingatkan kita agar tak lupa pada sejarah Perpu.

FROM http://www.detiknews.com/read/2009/09/22/170303/1207849/103/jas-merah-perpu-dan-kpk?991102605

Rob Baiton said...

Anong...

The quote or Soekarno or that Detik used wither to illustrate the perpu point?

It is a good thing that we still use Indonesian at home even though we have moved to Australia (otherwise I might have had to use Bable Fish or something).

I will check the link out. Only because quotes and context are important :D