EGA

EMERGENCY IN INDONESIAN LAW

Aurora Jillena Meliala, Handar Subhandi Bakhtiar, Dian Khoreanita Pratiwi
Jakarta Veterans National Development University

In this journal, it is explained that in the legal process, the impact of the pandemic is felt
in the legal juridical development. Several laws and regulations were suddenly passed without
heeding the formal legalistic provisions. Jimly Asshiddiqie, Professor of Indonesian
Constitutional Law explained how the formulation of laws and regulations during the Covid-19
Emergency Period was disrupted. Asshiddiqie, for example, argues that the Omnibus Law
suffers from various procedural defects that reflect the shift in the democratic state
administration system to a dictatorship. Asshiddiqie argues that the Omnibus Law suffers from
various procedural defects that reflect the shift in the democratic state administration system to a
dictatorship.

In fact, the indications of a shift in the democratic system to a different form of

government in a State of Danger have been widely postulated by various legal academics. One of
them, Zwitter, stated that the authority to determine emergency conditions was given to the
executive branch. Meanwhile, according to Venkat Iyer, there are at least 7 types of categories of
forms of emergency power action, one of which is the granting of legislative power to the
executive.

Zwitter and Iyer's opinion is in line with the 1945 Constitution of the Republic of
Indonesia which formulated Article 12 in conjunction with Article 22 paragraph 1 of the 1945
Constitution that the President has the authority to determine the State in Danger. The provisions
of the 1945 Constitution are also supported by the Emergency legal instruments under it,
including Perppu No. 23 of 1959 which states that the activation of a State of Danger can only be
carried out by the President as the Supreme Commander of the Armed Forces; and Law 24 of
2007 concerning Disaster Management which states that declarations can be made by the
President and regional heads based on the scale of the disaster.
 In the midst of the limitations of existing laws and regulations, the Constitutional Court
(MK) as the vanguard of democracy is expected to provide direction. The opinion of the
Constitutional Court is considered a Crystal of Knowledge from matters relating to
constitutionality. All laws are nothing but and cannot but must be in accordance with the ratio of
the decisions of the Constitutional Court to formulate the concepts presented in the Constitution.
In fact, the Danger State itself in the 1945 Constitution has not been comprehensively spelled
out. The minutes of the formulation of the 1945 Constitution, if relevant to current conditions,
are not necessarily actual. However, is it true that there is a definition of Emergency that can be
used as a reference that covers the entire order of state life, both in terms of economy, ecological
and health crises? so that it can be appointed as a reference for consideration of the
Constitutional Court's decision? Considering that the elements of an emergency are very general
in nature, the legal studies in this research will not be specific.

The results of the study in this paper state that Terminologically, an emergency is related
to the 'emergency doctrine' quoted by Asshiddieqie in the Black's Law dictionary which is
defined as follows: A legal principle that frees a person from a reasonable standard of care if that
person acts instinctively to fulfill urgent and urgent need for help.

1) A legal principle whereby consent for medical treatment in dire situations is concluded
when neither the patient nor the responsible party can give consent but a reasonable
person will.
2) The principle that a police officer may conduct a search without a warrant if the officer
has probable cause and believes that immediate action is necessary to protect life or
property. The first understanding relates to the concept of "sudden emergency doctrine".

The second definition is commonly used in the world of medicine and medical services,
while the third definition relates to the problem of 'emergency exception'. Definitions that have
relevance to the first and third legal issues regarding their application in norms and their
application in the field. In addition, a country in a state of emergency is also based on the
principle of proportionality as contained in international law.

This principle provides a standard of fairness249, so that the criteria for determining the
existence of a need become clearer when it is formulated as a justification for taking a
proportional emergency action, so that there is a reasonable limit. Therefore, the action in
question must not exceed the provisions of reasonableness which are the justification for
carrying out the action.

Regarding the state of emergency, there are three forms of emergency status, namely: civil
emergency, military emergency, disaster emergency, and military emergency. public health
emergency:

a) Civil Emergency Established by the president due to security threats on the territory of
the country due to rebellion, riots or natural disasters. Then there were wars and
violations of territorial sovereignty, as well as threats to the life of the state. Provisions
regarding civil emergencies are regulated in Chapter II, starting from article 8 to article
21 of Government Regulation in Lieu of Law no. 23 of 1959. A civil emergency is an
emergency whose level of danger is considered the lowest in terms of the least danger.
Due to this level of danger, there was no need for a counter operation led by the military
command.
b) Military Emergency The provisions regarding this military emergency are regulated in
Chapter III starting from article 22 to article 34 of Government Regulation in Lieu of
Law no. 23 of 1959 concerning the State of Danger.
c) State of War Emergency Provisions regarding State of War Emergency are regulated in
Chapter IV starting from article 35 to article 45 of Government Regulation in Lieu of
Law no. 23 of 1959 concerning the state of danger. The state of war arises because of a
threat that endangers the sovereignty of the state, the safety of the geese, and the integrity
of all or part of the territory of the state originating from foreign military powers, within
the territory of the state or outside the territory of the state. national defense tool.
Battlefields can occur within the territory of the country, if not necessarily in the entire
territory of the country, nor do they always have to be in the entire territory of the
country, but can only occur in certain areas.
d) Public health emergencies These public health emergencies are based on extraordinary
public health events. It can also be caused by infectious diseases, nuclear radiation,
biological contamination, chemical contamination, bioterrorism, and food. These things
are considered to pose a health hazard and have the potential to spread throughout the
region or across countries.
 Regarding public health emergencies, it is regulated in Article 10 of Law Number 6 of
2018. The status of public health emergencies is determined by the central government through
the determination of the type of disease and all risk factors that can cause public health problems.
emergency state. Discusses the state of emergency in Indonesia (emergency), known as hazard
(danger) as a normative term in the Indonesian legal system. Therefore, the use of hazard and
emergency are interchangeable in this regard. Nationally, hazardous situations are governed by
four laws:

1) Law 23/1959 concerning the Determination of Hazard Conditions. Second, Law 24/2007
on Disaster Management; Third, Law 7/2012 on Handling Social Conflicts; Fourth, Law
6/2018 concerning Health Quarantine. Article 1 of Law 23/1959 defines a 'state of
danger' as follows: The President/Supreme Commander of the Armed Forces declares all
or part of the territory of the Unitary State of the Republic of Indonesia in danger of a
civil or military emergency. a state of emergency or war, if due to rebellion, riots or
natural disasters, as far as it is concerned it cannot be resolved by ordinary means;
2) Then, Law 24/2007 on Disaster Management, which also has a different 'content' of
conditions, defines 'hazard' as: Disaster is an event or series of threatening events that
threaten and harm human life and life caused either by nature and/or non-natural, or by
human factors that result in human casualties, environmental damage, property loss, and
psychological effects. Law 24/2007 further divides disasters into three types: natural
disasters, non-natural disasters and social disasters. There are two types of disasters
called natural disasters and social conflicts which fall into the social disaster section. In
or a series of events caused by humans involved in social conflicts between groups or
groups of civil society, and terror”.
3) Regarding the Social Conflict Law, Law 7/2012 also stipulates part of the state of
emergency which defines social conflict as follows: “Social conflict is a feud and/or
violent physical clash between two or more community groups that occurs at a certain
time and has a major impact on vulnerability. social and disintegration that disturbs
national stability and hinders national development”. Law 7/2012 also regulates the status
used in the event of a social conflict. If there is a social conflict, the status used is the
status of the national conflict state, the provincial conflict state status and the district/city
conflict state status.
4) Law Number 6 of 2018 concerning Health Quarantine. The implementation of emergency
in the law refers to the term Public Health Emergency (PHE). PHE is a societal
phenomenon marked by the spread of infectious diseases and/or events caused by nuclear
radiation, biological contamination, chemical contamination, bioterrorism, and food that
poses a health hazard and has the potential to spread across regions or across countries”
(article 1 point 2) .
5) PHE is formulated in Chapter IV articles 10-14 of the Law. As stated in article 11, “In the
implementation of health quarantine at PHE, the Central Government must quickly and
precisely based on the importance of threats, effectiveness, resource support, and
operational techniques by taking into account state sovereignty, security, economy, social
and culture. ." In conclusion, these four laws generally regulate the same type of danger
but with different concepts. Law 23/1959 mentions five conditions that are part of the
civil emergency status, military emergency, and a state of war. Meanwhile, Law 24/2007
uses a national disaster emergency status, a provincial disaster emergency status and a
city disaster emergency status. Law 7/2012 uses national conflict state status, provincial
conflict status and district/city conflict status. Meanwhile, Law 6/2018 uses the term PHE
or Public Health Emergency. Compared to this law, Law 23/1959 is the oldest legal
framework for emergency powers in Indonesia, but it lacks human rights adoption, which
was enacted before the International Covenant on Civil and Political Rights (ICCPR).
Law 23/1959 mentions five conditions that are part of the civil emergency status, military
emergency, and a state of war. Meanwhile, Law 24/2007 uses a national disaster
emergency status, a provincial disaster emergency status and a city disaster emergency
status. promulgated before the International Covenant on Civil and Political Rights
(ICCPR). Law 23/1959 mentions five conditions that are part of the civil emergency
status, military emergency, and a state of war. Meanwhile, Law 24/2007 uses a national
disaster emergency status, a provincial disaster emergency status and a city disaster
emergency status. promulgated before the International Covenant on Civil and Political
Rights (ICCPR). Law 23/1959 mentions five conditions that are part of the civil
emergency status, military emergency, and a state of war. Meanwhile, Law 24/2007 uses
a national disaster emergency status, a provincial disaster emergency status and a city
disaster emergency status.