Selasa, 17 Oktober 2017
Opini
08/08/2017
By Pardiyanto *)

Representatives of a number of mass organizations such as Hizbut Thahrir Indonesia (HTI), the Islamic Defenders Front (FPI), the National Movement for Fatwa Guards (GNPF) MUI, and the Council of Indonesian Islamic Da'wah (DDII) held the Coordination Meeting of Community Organizations and Da'wah Institutions (16/7/2017) Formulating the rejection of the Government Regulation in Lieu of Law no. 2 Year 2017 on Amendment to Law no. 17 of 2013 on Social Organizations signed by President Joko Widodo on July 10, 2017. HTI Organs felt as the first organization to become a target of dissolution with the amendment of Law no. 17 of 2013, while FPI and GNPF MUI feel it will be the next target after HTI, so HTI, FPI and GNPF MUI looks hard to fight against the Government Regulation in Lieu of Law no 2 Year 2017. Various arguments are compiled using the logic and language of the gods as the State has become arrogant and deadly human rights, the Government castrate democracy and the State deprives of liberty with the advent of the Government Regulation in Lieu of Law no. 2 Year 2017. People's logic is influenced to attack and vilify the Government, while the Government must be upright to maintain the integrity and sovereignty of the State and the safety of the nation from a handful of mass organizations that disturb the integrity of the State of Indonesia. The government does not mean depriving of liberty but seeks to prevent over-all organizations to replace the Unitary State of the Republic of Indonesia based on Pancasila or develop radicalism.

The Procedural and Substantial Basis of Perpu No. 2 Year 2017 
Article 22 Paragraph (1) of the 1945 Constitution states that "In the case of the pressing inclination, the President shall be entitled to stipulate the government regulation in lieu of law. The provision also, mandated in Article 1 point 4 of Law no. 12 Year 2011 Concerning the Establishment of the Laws and Regulations that "The Government Regulation in Lieu of Law is a regulation stipulated by the President in relation to crucial matters". The interpretation of the "crucial urgency matters" underlying the issuance of a the Government Regulation in Lieu of Law is the President's essay in the sense of the President's prerogative, and the Parliament conducts an assessment of the President's interpretation of "crucial matters", through the discussion of the Perpu in the next trial period after the the Government Regulation in Lieu of Law Registered to the Legislative Council of the Parliament. PERPU registered to the Parliament must be discussed immediately to be approved or not disapproved by the Parliament, as Article 22 of the 1945 Constitution, that:
In the event of a pressing incident, the President shall be entitled to stipulate a government regulation in lieu of law.
The government regulation must be approved by the House of Representatives in the following hearing. 
If it is not approved, then the government regulation should be revoked. 

In Government Constitution of Lieu of Law No. 2 Year 2017 at least, 2 (two) considerations of the Government or the President in "matters pertaining to the urgency of force", namely: first, there are certain social organizations whose activities are not in line with the principles of social organization in accordance with the articles of social organization (read: deviate from Pancasila And the 1945 Constitution of the State of the Republic of Indonesia) which has been registered and has been ratified by the Government, and even factually proven to exist the principles of social organization and its activities that are contrary to Pancasila and the 1945 Constitution of the State of the Republic of Indonesia; And secondly, Law no. 17 Year 2013 on Social Organization has not adhered to the principle of contrarian actus so that it is not effective to apply sanctions to social organizations that embrace, develop and disseminate teachings or understandings contrary to Pancasila and the 1945 Constitution of the State of the Republic of Indonesia.

Considering the preparation of the Government Regulation in Lieu of Law No. 2 Year 2017, it is quite clear that the Government assess the development of national and state life has colored some organizations that deviate from the basic principles of CSOs in the form of deviating from Pancasila and the 1945 Constitution of RI, which urges should be immediately given sanctions. However, the existing law is not sufficient enough to take immediate legal action. The existence of CSOs that deviated from Pancasila and the 1945 Constitution of RI, became a substantial consideration of the need to issue the Government Regulation in Lieu of Law No. 2 Year 2017, whereas the urgent condition for legal action taken, while the existing Law (in this case Law No. 17 of 2013) is considered not sufficient enough to immediately dissolve the CSOs) is a procedural consideration in issuing the Government Regulation in Lieu of Law No. 2 Year 2017. "The force of force" should not be interpreted by the state in danger because of the threat of weapons or war or chaos, but conditions where there is a need for the Government to immediately solve legal problems and the existence of the law is considered inadequate. PERPU No. 2 Year 2017 has fulfilled the objective element of "crunching force" of the establishment of PERPU in accordance with the Decision of the Constitutional Court Number 138 / PUU-VII / 2009 that there are three objective measures to publish the Government Regulation in Lieu of Law to fulfill "forcefulness of interest:

The existence of a situation that is an urgent need to solve legal problems quickly based on the Act;
The required law does not exist so there is a legal vacuum, or there is a Law but is inadequate; 
The void of the law can not be overcome by making the law in a normal procedure because it will take a long time while the urgent circumstances need certainty to be resolved. 

Meanwhile, related to the principle of contrarian actus is a body or state administrative officer who issued a state administrative decision with his own authority to cancel back its decision. That is to say, the law can be canceled (verniegbaar) by revoked the competent party, not merely to be canceled through a statement of cancellation by the court. In the case of the law of state administration, the legal product of an institution shall be revoked or canceled because an Institution considers the law issued there is a deficiency or there is a consequence of the action. It is customary in the law of state administration, if CSOs passed by the Ministry of Law and Human Rights Decree are again canceled or revoked by the Ministry of Justice and Human Rights. With the principle of contrarius actus, the Ministry of Law and Human Rights which has the authority to grant the organization permit is authorized to revoke the permit, however the legal Subject related to a Decision may make a State Administrative Claim through the Court.

With these considerations, it is not enough reason that the Government Regulation in Lieu of Law No. 2 Year 2017 does not meet procedural and substantial requirements because the procedural the Government Regulation in Lieu of Law no. 2 Year 2017 has sufficient reason for the "crunch force" and substantially the Government has a factual evidence of the existence of CSOs that have deviated from Pancasila and the 1945 Constitution. In relation to mass organizations, the Ministry of Law and Human Rights does not merely dispute its own ruling to the Court but Kemenkumham has the authority to revoke its decision in accordance with state administrative law. 

Perpu no. 2 Year 2017, Constitutional To Dissolve CSOs 
CSOs who feel aggrieved by the existence of the Government Regulation in Lieu of Law No. 2 Year 2017 may file a lawsuit of judicial review, although the Government Regulation in Lieu of Law No. 2 Year 2017 has sufficient ground of law to meet procedural requirements and substantial requirements because it has fulfilled the objective indicator of issuance of the Government Regulation in Lieu of Law. Its which endorsed by the President on July 10, 2017 has become law of positive law binding force to dissolve the CSOs, although Perpu has a temporary period (the time is very limited) ie until there is a decision of the House of a Perpu approved or not approved or there is Law Which revokes or legislation. the Government Regulation in Lieu of Law has the same position as the law, pursuant to Article 7 of Law no. 12 of 2011 that the hierarchy of the Government Regulation in Lieu of Law is equivalent to Law, while Article 11 of Law no. 12 Year 2011 stated the Government Regulation in Lieu of Law material content equal to the content of the material with the Act. In the context of Perpu No. 2 Year 2017, content of the Government Regulation in Lieu of Law is the content of "fulfillment of legal needs in society". As discussed above, that the Government Regulation in Lieu of Law no. 2 Year 2017 assessed urgently issued because of Law no. 17 of 2013 is not sufficient enough to immediately dissolve the CSOs that deviate from Pancasila and the 1945 Constitution, and deviate from the customary law of state administration because it eliminates the principle of contrarian actus.

The government in this case, Justice and Human Right Ministry has a legal basis to revoke the Decision on the Establishment of CSOs with the issuance of Perpu No. 2 Year 2017. Nevertheless, Justice and Human Right Ministry must be prepared with judicial review of organizations that have been revoked or disbanded. The government through the Ministry of Justice and Human Right actually has a strong legal basis for dissolving CSOs with the issuance of the Government Regulation in Lieu of Law no. 2 Year 2017. Even the dexterity of the Government to dissolve a CSO will prove the Government's consistency of urgent conditions should be immediately taken legal steps. If the Government is consistent to dissolve Hizbut Thahrir Indonesia (HTI), as stated by Political, Justice and Security Coordinating Minister, Wiranto in a press conference on May 8, 2017, then Justice and Human Right Ministry should immediately issue Revocation of Decree of Justice and Human Right Ministry Number: AHU-00282.60.10.2014 on HTI establishment and dissolve HTI. 

National Stability versus Human Right 
Pros and Cons of Perpu No. 2 Year 2017 actually triggered two different grounding that the Government wants to maintain the National Stability, on the other hand some people feel defend human rights, but on the other hand there are some people who need existence by raising polemic the Government Regulation in Lieu of Law No. 2 Year 2017. This, should not happen when all are aware of the principles of the implementation of statehood of Indonesia, including:

First, Indonesia is a country based on law. The rule of law is a state that upholds the rule of law in upholding truth and justice, and no irresponsible acts or judgments. In context, issuance of the Government Regulation in Lieu of Law No. 2 Year 2017 and the Authority of Justice and Human Right Ministry to make the Decision of the Revocation of Community License is a responsible act, and to fulfill the sense of justice of the aggrieved Community can submit legal evidence by mangajuan Therefore, the Government must firmly dare to revoke the mass organizations considered to change or change NKRI and Pancasila as a preventive strike. 

Secondly, Indonesia is a democratic country. A democratic government is a government that provides a large space for its people to run the government, but Indonesia is impossible to run the Government directly by the people, so that Democracy Representation becomes Indonesia's choice. People's sovereignty is run by state institutions as representative institutions, which must develop nomocracies to defend the interests of the state with the interests of the people so that national stability is ensured. At some point, the implementation of the responsible law is the meeting point between the Will of the People and the Will of the State. 

Third, Indonesia is a country that upholds human rights. As a country that upholds human rights, the state gives freedom of association and gather to express opinions. In the end, freedom will bring fragmentation among the people because of the different wills, so the state ensures the need for a national consolidation that saves the Unity of the Republic of Indonesia remains sovereign because NKRI is a country that stands on the blessing of Allah Almighty. Therefore, freedom must be responsibly restricted by responsible judicial decisions.

Perpu  . 2 Year 2017 is basically not an arrogance of the Government to suppress freedom and human rights, but the normative legal requirement that directs freedom and human rights on the track in the corridor to defend NKRI. Democratization does not have to sacrifice the State, Sovereignty does not sacrifice freedom. ***

*) Social and Behavior Observer.