New terrorism decrees a risky business

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.