Explanation of the Ordinance | Analysis

PLANNING ORDINANCE OF
THE REPUBLIC OF INDONESIA

NUMBER YEAR

ON

WARDING OFF THE STATE OF EMERGENCY

THROUGH THE GRACE OF THE LORD ALMIGHTY

THE PRESIDENT OF THE REPUBLIC OF INDONESIA

Considering :

a. that to reach the national ideal and objective based on the Five Principles of the Nation and the constitution of 1945, the community life, as a nation, as a state should be constantly maintained and continues in safety and in an orderly manner.

b. that in the execution of the government of the state for upholding the sovereignty of the state, the maintenance of the unity and integrity of the nation and the wholeness of the united territory of the State Unity of the Republic of Indonesia, various treats may arise from the domestic side as well as from the foreign side with high intensity, so that it will be required to ward off the state of emergency by taking early steps, swift, exactly, integrated, final, safe and professional.

c. that the state unity of the Republic of Indonesia is based on law, therefore warding of the state of emergency is as an effort to prevent and to overcome threats against the safety and security of the nation that in fact is a protection against the safety and security of the people should be based on the stipulations of the national law and the international law.

d. That the President as the highest executor of the government of the state is responsible for warding off the state of emergency, and has therefore the authority to take steps to save and pacify the state ;

e. That Ordinance Number 23 Prp of the year 1959 on a state of emergency and Government Regulations Number 16 of 1960 on the Request and the Execution of Military Aid that all this time had been the legal base of warding off threats against the state's security defense is not suitable anymore with the development of law and matters pertaining to the government, so that it should be revoked and changed.

f. That based on the considerations as meant in points a, b, c, d, and e an Ordinance in warding of the State of Emergency will be required ;

Recollecting :

1. Article 5 paragraph (1), Article 10, Article 11, Article 12, Article 20 paragraph (1) and Article 30 paragraph (1) of the National Constitution of 1945.

2. Ordinance Number 20 of the year 1982 on the Main Stipulations of the State's Security Defense of the Republic of Indonesia (the State Gazette of 1982 Number 51, Additional State Gazette Number 3234) as had been revised through Ordinance Number 1 of the year 1988 on the Revision of Ordinance Number 20 of the year 1982 on the Main Stipulations of the Nation's Security Defense of the Republic of Indonesia (the State Gazette of the year 1988 Number 3, the Additional State Gazette Number 3368) ;

With the Approval of the
PEOPLES' REPRESENTATIVE COUNCIL OF
THE REPUBLIC OF INDONESIA
DECIDED

To Determine : THE ORDINANCE ON WARDING OFF A STATE OF EMERGENCY

CHAPTER I
GENERAL STIPULATIONS

Article 1

In this Ordinance what is meant by :

1. Warding off is an effort that is carried out to prevent, to face or to overcome a state of emergency

2. A state of emergency is a condition on the disturbance of the safety or general orderliness by the presence of riots accompanied with violence, armed rebellion, or the desire to separate oneself from the territory of the state by violence or the presence of a threat for war or the outbreak of war that cannot be overcome by the ordinary apparatus of the State

3. A threat is an effort executed in a conception way through social, political, economical or cultural activities that endanger the sovereignty of the state, the unity and integrity of the nation, and the wholeness of the territory of the State's Unity of the Republic of Indonesia.

4. Arrangement for Warding Off a State of Emergency is a part of the efforts for the State's security defense that is one of the functions the state's government that is executed through warding off activities against every threat, from the domestic side as well as from abroad executed through early, swift, exact, integrated, final, safe and professional manner aimed for the maintenance of the state's sovereignty, unity and integrity of the nation and the guarantee on the wholeness of the territory on the State Unity of the Republic of Indonesia.

5. Governor is Head of the Provincial Territory which due to the position is also serving as Representative of the Central Government as meant in the regulations of law.

6. Commander is the Commander of the Indonesian National Forces.

CHAPTER II
PRINCIPLE, OBJECTIVE AND WARDING OFF EFFORTS

Article 2

Arrangement for the safety and security of the nation are based on :

a. The principle of law security

b. The principle of guardianship

c. The principle of openness

d. The principle of integrity

e. The principle of proportionality, and

f. The principle of professionalism

Article 3

The objective of warding off a state of emergency is for the quick recovery of :

a. government function

b. social, political and economical life activities

c. unity and integrity of the nation and the guarantee of the wholeness of the territory of the State Unity of the Republic of Indonesia

Article 4

Efforts on warding off a state of emergency shall always heed and placing in force the international law and protection against the human rights.

Article 5

Efforts in warding off a state of emergency may be carried out in part or the whole territory of the State Unity of the Republic of Indonesia.

Article 6

Effort in warding off as meant in Article 5shall be the authority and responsibility of the President.

Article 7

(1) The President declares or revokes the statement on a state of emergency after consultation or obtaining the approval from the Peoples Representatives Council.

(2) The Decision that declares or revokes as meant in paragraph (1) shall become valid on the day of announcement except stipulated otherwise in said decision.

Article 8

The State of Emergency may be divided into :

a. special condition

b. state of emergency

c. state of war

CHAPTER III
SPECIAL CONDITION

Article 9

(1) In the case of a danger threatening against the state and handling by the State Officials in an ordinary manner are evaluated as unable to overcome it, the President shall declare a State of Special Condition.

(2) The situation as meant in paragraph (1) is reported by the Governor to the President after a prior approval from the Peoples' Representatives Council on the occurrence of riots that are accompanied by violence and/or the occurrence of a situation that results in :

a. execution of the governmental function cannot be operated as it should be; and or

b. the economic life and community life activities are disturbed.

Article 10

(1) The Special Condition as meant in Article 9 paragraph (1) shall be valid for a period of 3 (three) months maximum

(2) The period as meant in paragraph (1) whenever required may be extended for a maximum period of 3 (three) months by the President at the request of the Governor with the prior approval from the Regional Peoples Representatives Council.

Article 11

(1) In Warding Off a State of Special Condition as meant in Article 9 paragraph (1) the Governor has the authority to take steps :

a. the temporary prohibition for people entering or leaving a certain territory;

b. the temporary appointment of people outside the territory of their residence;

c. the limiting and or closing of a territory;

d. to limit people staying outside their homes.

(5) The authority of the Governor as meant in paragraph (1) shall be carried out by the State Police of the Republic of Indonesia.

Article 12

(1) In Warding Off a State of Special Condition the Governor is assisted by the Control Team that consists of :

a. The Regional Chief of the Police

b. The highest Regional Commander of the Indonesian National Forces units

c. Head of the Attorney General Office

d. Leadership elements of the Regional Peoples Representative Council

e. Elements of the Community.

(6) The Control Team as meant in paragraph (1) is formed by the Governor.

Article 13

The temporary prohibition for someone entering or leaving a certain territory as meant in Article 11 paragraph (1) point a, may only be executed against someone that in accordance to adequate preliminary evidence should be presumed of conducting activities that may disturb, hinder, or hamper efforts in warding off a state of special condition.

Article 14

The temporary appointment of someone outside the territory of ones residence as meant in Article 11 paragraph (1) point b, is executed to protect the safety and security of the citizens.

Article 15

The limiting and or closing of a territory as meant in Article 11 paragraph (1) point c, and limiting people for staying outside their homes as meant in Article 11 paragraph (1) point d, may only be executed against the territories that are placed under a state of special condition.

Article 16

(1) In the case of a State of Special Condition was able to be ward off based on the report from the Governor with the approval from the Regional Peoples Representatives Council, the President shall declare the withdrawal of the State of Special Conditions.

(2) In the case that the State of Special Conditions is withdrawn, all the authority of the Governor as meant in Article 11 paragraph (1) are declared to be invalid anymore.

CHAPTER IV
IN A STATE OF EMERGENCY

Article 17

(1) In the case that the conditions of the state is threatened by danger due to occurrence of rebellions and or factual efforts of violence to separate a part of the territory of the State Unity of the Republic of Indonesia, based on the reports from the Governor after obtaining an approval from the Regional Peoples Representative Council and after consulting with the Peoples Representatives Council, the President may declare a state of emergency. The President shall declare the withdrawal of the state of emergency.

(2) In the case that the Governor and/or the Regional Peoples Representatives Council are unable to execute their function or involved in the activities as meant in paragraph (1), the President, after consulting the Peoples Representatives Council, may declare a State of Emergency.

Article 18

(1) Warding of the State of Emergency as meant in Article 17 paragraph (1) shall be valid for a maximum period of 6 (six) months.

(2) The time period as meant in paragraph (1) if required may be extended by the President after consulting the Peoples Representatives Council based on the report and proposal of the Governor with the prior approval from the Regional Peoples Representatives Council.

(3) The execution of Warding Off the State of Emergency as meant in paragraph (1) and paragraph (2) is obliged to be evaluated, reported and proposed for further steps by the Governor with the approval of the Regional Peoples Representatives Council to the President within every 3 (three) months at the latest.

Article 19

(1) In a state of emergency, the President holds the highest authority as the Central Emergency Person with Authority.

(2) In executing the authority as meant in paragraph (1), the President is assisted by a Central Controlling Team that consists of the Commander and Minister or other concerned officials.

(3) The Central Controlling Team as meant in paragraph (2) is formed by the President as the Central Emergency Person with Authority

Article 20

(1) The Central Emergency Person with Authority has the right to utilize all the components of the power for the state security defense.

(2) In the execution of the authority as meant in paragraph (1) the Central Emergency Person with Authority is assisted by the Commander.

(3) Upon the order of the Central Emergency Person with Authority, the Commander, by considering the national security, the general orderliness and the general welfare may :

a. may take steps as meant in Article 11 paragraph (1) ;

b. to conduct investigations, summons and examinations ;

c. to arrange the post, telecommunication and electronics ;

d. to conduct steps in the fields of general orderliness and safety

e. to conduct a direct search and confiscation against guns and/or equipment utilized in the efforts to conduct rebellions and/or efforts to separate a territory (separatism) that should be reported to the Chairman of the Court of Justice with a period of 2 (two) x 24 (twenty four) hours.

f. To conduct all steps against fire arms, ammunition, explosives and sharp weapons.

g. To obligate someone to work for the benefit of safety defense ; and

h. To limit, arrange or to prohibit traffic on land, in the air and waters.

Article 21

The regulations issued and the steps taken by the Person with Authority of the Military State of Emergency shall be in force as of being decided and widely announced to be known by the community.

Article 22

(1) The Person with Authority in the region is the highest Commandant of the Indonesia National Armed Forces of said region, the lowest is that identical to the rank of Military Resort Commander as the Person with Authority of the Emergency Region.

(2) In the execution of his authority, the Regional Emergency Person with Authority as meant in paragraph (1) is assisted by the Regional Control Team that consists of :

a. the Governor

b. the Head of the Regional Police

c. Head of the District Attorney General

d. the Leadership elements of the Regional Peoples Representative Council

e. elements of the community

(6) The Control Team as meant in paragraph (2) is formed by the Person with Authority of the Emergency Region.

Article 23

The Central Emergency Person with Authority decides for the Regional Emergency Person with Authority and his legal region.

Article 24

The Regional Emergency Person with Authority has the right to issue regulations that are not in contrary with the regulations issued by the Person with Authority of the Central Emergency and has the right to take steps as meant in Article 20 paragraph (3).

Article 25

(1) In the case of a State of Emergency that has been able to warded off based on the report of the Governor with the prior approval of the of the Regional Peoples Representative Council, the President after a prior consult with Peoples Representative Council may declare a withdrawal of the State of Emergency,

(2) Whenever the Governor and/or Regional Peoples Representative Council are unable to execute their function as meant in Article 17 paragraph (2) (previous) based on the report of the Person in Authority of the Regional Emergency, the President, after a prior consult with the Peoples Representative Council may declare the withdrawal of the State of emergency.

Article 26

The Governor with the prior approval of the Regional Peoples Representatives Council may retain part of the regulations and steps taken by the Person with Authority of the Regional State of Emergency within a period of 3 (three) months after the withdrawal of the state of emergency.

Article 27

(1) In the case the State of Emergency is withdrawn, all the regulations that have been issued by the Emergency Person with Authority shall not be valid anymore and the steps that is the authority of the Emergency Person with Authority is stopped.

(2) At the time the State of Emergency is revoked. The presence of the Emergency Person with Authority and the Control Team shall also be terminated.

CHAPTER V
IN THE STATE OF WAR

Article 28

In the case a war or a threat of war occurred with a foreign country or a rebellion and/or factual efforts to separate part of a territory of the State Unity of the Republic of Indonesia involves factual foreign support, the President, with the prior approval from the Peoples Representatives Council may declare a State of War.

Article 29

(1) In a State of War, the President holds the highest authority as the Central Emergency Person with Authority

(2) In the execution of the authority as is meant in paragraph (1), the President is assisted by the Central War Control Team that consists of the Commander, Minister and/or other officers concerned.

(3) The Central Control Team as meant in paragraph (2) is formed by the President as the as the Person With Authority of the War Center.

Article 30

(1) The Central War Person with Authority has the right to utilize all the strength components of the state safety defense.

(2) In the execution of the authority as meant in paragraph (1) the Central War Person with Authority is assisted by the Commander.

(3) Upon the orders of the Central War Person with Authority, the Commander may :

a. to conduct steps as meant in in Article 20 paragraph (3) ;

b. to take or to order hand over of goods that are required for utilization in warding off the state off the state of war emergency ;

c. to call people to work for the Indonesian National Forces ;

d. to prevent strikes ;

e. to conduct arrangements or to take steps that are not in accordance with the stipulations of the regulations of the law in force for the sake of warding off the state of war, whenever the conditions are very pressing and dangerous.

Article 31

The regulations that have been issued and the steps that have been taken by the War Official in Charge shall be valid as of the decision and a widely announcement so as to be known by the community

Article 32

(1) The State of War Emergency Person with the highest Authority in the regions is the highest ranking regional military commander, at the lowest a Commander of the Military Resort as the person in Authority of the Regional State of War Emergency.

(2) In the execution of his authority the Person with authority of the Regional State of War Emergency as meant in paragraph (1), consists of :

a. The Governor
b. The Head of the Regional Police force
c. The Head of the Attorney General
d. Elements of the Peoples Representative Leadership
e. Elements of the Community

(6) The Control Team as meant in paragraph (2) is formed by the Person with Authority of the Regional State of War Emergency

Article 33

The Person with Authority of the Central Military State of Emergency shall appoint the Authorized person of the Regional Military State of Emergency and its legal area :

Article 34

(1) the Person with Authority of the Regional State of War Emergency, has the right to issue Regulations and take steps as meant in Article 30 paragraph (3).

(2) The regulations that have been issued and the steps taken by the Person with authority of the Regional State of War Emergency as meant in paragraph (1) has the obligation to be reported to the Person with Authority of the Central State of War Emergency.

Article 35

In the case that the State of War Emergency is able to be warded off, based on the report of the Person with Authority of the Regional State of War Emergency, the President, with the prior approval from the Peoples Representatives Council shall declare the withdrawal of the State of War Emergency.

Article 36

(1) In the case that the State of War Emergency has been withdrawn, all the regulations that have been issued by the Person with Authority on War shall not be valid anymore while the steps that are the authority of the Person with Authority on War shall be terminated.

(2) At the time the state of war emergency is withdrawn, the presence of the Person with Authority and the Controlling Team are terminated.

(3) Head of the government in the concerned regions may maintain a part of the regulations or steps of the Person with Authority of the Regional State of War Emergency within 4 (four) months at the latest after the withdrawal of the state of war emergency.

Article 37

In the case that the District Attorney and the Court of Justice in the environment of the public justice cannot execute their functions any more, the authority of prosecuting and passing on sentences on criminal cases shall be executed by the office of the military prosecutor and Court of Justice with the environments of the Military court of law.

CHAPTER VI
CRIMINAL STIPULATIONS AND CLAIMS REIMBURSEMENT

(The Decision of the Panja 13-9-99, is approved, the chronology is adjusted by the TIMSIN)

Article 38

Every person that violates the stipulations as meant in Article 11 paragraph (1) shall be sentenced with a criminal imprisonment of maximum 3 (three) months.

Article 39

Each person that violates (or refuses) the regulations from the Person with Authority of the State of Emergency as meant in Article 20 paragraph (3), Article 24, Article 26 or the Person with Authority in a state of War as meant in Article 30 paragraph (3), Article 34, Article 36 paragraph (3) shall be criminally sentenced with a criminal imprisonment of maximum 1 (one) year 6 (six) months, except if said criminal act is threatened with a more severe criminal sentence in another ordinance.

Article 40

The official that misused the authority given by this law shall be criminally sentenced with a minimum criminal imprisonment of 3 (three) months and a maximum of 5 (five) years.

(Notes : Explanations are required on :

(1) The authority of judges in sentencing judgement should consider the gradation of the situation.

(2) The official meant are the officials that are concerned with the validation of the situation, including the Controlling Team

(3) For the Officials that misuse their authority, the other stipulations of the law remain applicable.)

Article 41

(1) Every person that experienced a loss due to the steps taken by officials as meant in Article 30 paragraph (3) point b. and point c. shall have the right to forward a claim for reimbursement in accordance with the regulations of the law.

(2) The claim as meant in paragraph (1) shall be burdened on the state.

Article 42

The issued regulations and the steps taken by the Person with Authority of the State of Emergency or the Person with Authority of the War State of Emergency is valid as of the determination and announced widely to be known by the community.

(The Decision of the Panja 13-9-99 is agreed to be divided into three placements on each gradation condition, are handed over to the TIMSIN)

Article 43

In a State of Emergency and a State of War, the President may announce for a mobilization in accordance with the stipulations of the regulations of the law in force.

(The Decision of the Panja on the 13-9-99 is agreed to be broken down into three placements on each gradation condition, is handed over to the TIMSIN).

CHAPTER VII
OTHER STIPULATIONS

Article 44

At the time of validation of this Law, Ordinance Number 23 Prp of 1959 on the State of Danger (State Gazette of 1959 Number 139, Additional State Gazette Number 1908) and Government Regulation Number 16 of the year 1960 on the Request and Execution of Military Aid is declared as invalid.

Article 45

This Ordinance is valid on the date it is enforced. In order that every man may be aware of, to command the enforcement of this ordinance by placing it in the State Gazette of the Republic of Indonesia.

Is legalized in Jakarta
On the date of

THE PRESIDENT OF
THE REPUBLIC OF INDONESIA