—Yassar Aulia and Sayyidatiihayaa Afra Geubrina Raseukiy are undergraduate students from Padjadjaran University Faculty of Law, Indonesia.
As the world faces the spread of COVID-19, The Indonesian National Police (the Police) have been using the health emergency as a means for violating human rights and civil liberties. They do so by granting themselves unlawful authorities using their internal circular letter (‘Surat Telegram’ and ‘Maklumat Kapolri’) issued by the Indonesian Police Chief, without any mandate given to them by law or by the government. By doing so, their actions have no legal basis, and in some of them even violates the Indonesian Constitution and basic principles of the rule of law. To name a few of these actions: unauthorized dispersions, crackdowns and even detentions on any form of public gatherings; criminalizing the spread of hoax about how the government handles COVID-19 on social media; illegally seizing books; and reviving President defamation law, which has been annulled before by the Indonesian Constitutional Court.
What is being done by the Police gives the impression that somehow the President has declared a civilian emergency (a form of state of emergency used as a measure to combat insurrection or invasion) such as stipulated in Article 12 of the Indonesian Constitution. In a civilian emergency, the government is allowed to enact a more restrictive means on civil liberties, and the government actions during this status cannot be supervised by either the parliament or the courts. However, in reality, the Indonesian President—Joko Widodo never enacted a civilian emergency, even though he want to do so, instead he declared a health emergency status as contained in Law No. 6/2018 on Health Quarantine (Health Quarantine Law). The health emergency status is not included in the state of emergency category as contained in Government Regulation in Lieu of Law No. 23/1959 on Emergency Situation (Emergency Law), which serves as an organic law for Article 12 of the Constitution.
There is a fundamental distinction between civilian emergency and health emergency. Namely, in a health emergency, the course of government must be based on constitutional order and the rule of law. So, the government cannot excessively restrict civil liberties through arbitrary discretion in any form outside the provisions stipulated in Health Quarantine Law. In this context, any actions taken by the government that limit civil liberties in the name of responding the health emergency must have a direct correlation to the handling of COVID-19. This concept of health emergency as regulated in the Health Quarantine Law is in line with the concept of ‘Small Emergency’ as offered by Kim Scheppele. The ‘small emergency’ can take form in natural disasters or other causes that are not ‘political’ in its nature.
However, long before the Indonesian government has taken any legal measure to declare a health emergency, the Police has taken the initiative to impose crackdowns and disperse any form of public gatherings by using ‘Maklumat Kapolri’ (Indonesian Police Chief Notice) as their basis for action. When confronted about its legality, the Police falsely claimed that they could perform crackdowns on public gatherings, even without any declaration of health emergency from the government. During the same statement, they even state to have detained 18 people that do not comply when dispersed. This unlawful act performed by the Police more closely resembles actions that are performed during a civilian emergency, which indeed allow the government to carry out actions that are usually deemed to be ‘unlawful’ during a normal situation.
‘Maklumat Kapolri’—which serves as an internal circular letter for the Indonesian Police—is not a valid legal document to impose limitation against people’s rights as it is not acknowledged by the official Indonesian hierarchy of norms as stipulated by Law No. 12/2011 on the Formation of Laws and Regulations. More specifically, under article 7(1). Thus, it has no authority in creating binding norms for the public, mainly as the document is being used to justify the violation of the constitutional right for assembly—as guaranteed by Article 28E (3) of the Indonesian Constitution. The notice cannot be used as the basis for limiting such right, taking into account the constitutional guarantee of Article 28J (2) of the Indonesian Constitution that requires every limitation on human rights must be designated by law (refers to an act formulated by the Indonesian House of Representatives and the President). Since the notice was issued on March 19th, 2020, just by March 28th, the Police reported having dispersed over 7.031 crowds all across Indonesia.
Furthermore, other measures that are taken by the Police even blatantly defy Constitutional Court decision. Such as can be seen by the issuance of ‘surat telegram’ (another form of an internal circular letter for the Indonesian Police) number ST/1100/IV/HUK.7.1/2020. The document tries to impose crackdowns on the spread of hoax regarding how the government handles COVID-19 in social media and revive the Draconian law regarding President defamation—which has long been annulled by Constitutional Court (decision number 013-022/PUU-IV/2006). In its decision, the Court stressed that there should be no longer any similar laws that try to criminalize ‘insulting’ the President (page 61, paragraph 2). Ironically, the public backlash on the letter issuance are met by a comment from the Indonesian Chief of Police that said: “law enforcement cannot satisfy all parties”. In doing so, it gives the impression that their unlawful actions which violate human rights are actual, ‘legal’ acts.
During the pandemic, the Police also busied themselves with seizing books that believed to contain ‘anarchist ideologies.’ The seizure is part of a narrative that is created by the Police, which claimed that on April 18th, 2020, ‘anarchist groups’ have planned to carry out large-scale looting on the entire island of Java (Indonesia’s most populous island), using the pandemic to their benefits. The looting in question never happened. Conveniently, the day after five vandalism suspects have been arrested, along with the seizure of their ‘anarchist’ books (which results in the Police statement regarding the looting), circulates a video that contains a confession from someone that claimed to be the leader of ‘anarcho-syndicalist’ in Indonesia. Later, it was found that the person in the video was a thief that stole a traffic officer’s helmet. The video was taken while he was in custody. The intention of the seemingly staged public confession and the overall narrative about the threat of anarchist groups during the COVID-19 pandemic by the Police is unclear. Nevertheless, their seizure of books defied another Constitutional Court decision. In their decision number 6-13-20/PUU-VIII/2010, the Court stated that no state institutions, including the Indonesian Police, can have any authority to seize books without a warrant from the chairman of the local district court.
In the end, we agree that every measure possible must be taken by governments to handle the spread of COVID-19. However, those measures cannot be based only on arbitrary discretional powers. Every action in a constitutional democratic state must abide by the rule of law and has a clear legal basis. What the Police did in the cases mentioned above does not reflect this. Openly defying Constitutional Court decisions, and giving themselves unlawful authorities cannot be justified only by saying that it was done in the name of the people. In a constitutional democratic government, it is also vital that state institutions remain obedient to the concept of checks and balances in exercising their authority. Nevertheless, these checks are proven difficult to perform, considering judicial branches such as the Constitutional Court, or pressure groups like Non-Governmental Organizations are forced to postpone their activities at the office due to the pandemic.
