New terrorism decrees a risky business

Debbie A. Lubis, The Jakarta Post, Jakarta

Constitutionally, the issuance of government regulations in lieu of law is a risky move as a president's credibility is at stake.

The move will prove that a president has the courage to take a high-profile decision, but it could cost the head of state dear if the regulation failed to gain House of Representatives approval to become law.

Jimly Asshiddiqie, a constitutional law professor at the University of Indonesia, said that the 1945 Constitution allowed a president the discretion to issue a regulation in lieu of law based on his or her interpretation under certain circumstances, such as during a state of emergency or war.

He said that such a regulation would be needed if the country was under attack from a foreign country or party or if the country was plunged into extraordinary tension, as happened during the May 1998 riots.

According to Jimly, the president was allowed to issue the regulations in lieu of law if he or she thought the administration was in a state of emergency while the House was in recess, which made it impossible to pass regulations into law.

Chapter 22 of the fourth amendment to the 1945 Constitution stipulates that a government regulation in lieu of law should be approved by the House within the sitting immediately after the regulation has taken effect.

In the absence of House approval, the regulation should be revoked.

The president, Jimly said, had to be held responsible for the impact of a regulation in lieu of law that was implemented.

"Therefore the president would usually avoid issuing such a regulation because he or she would lose face and public confidence if the House turned it down. But that is the legal consequence he or she should take as a statesman," he told The Jakarta Post.

Jimly, however, worried that such a regulation could serve as a political umbrella for the president in the absence of creativity and a lack of sense of direction.

"The ruling is there to prove that the president can make effective decisions in support of law enforcement amid a crisis of public confidence and legal certainty," he said.

The regulations would be also useful as a legal umbrella for law enforcers to take immediate steps in an emergency situation, he said.

Jimly insisted that regulations in lieu of law could not be retroactive or be relied on in a trial concerning events that had occurred before their issuance.