CIRCULAR LETTER IN HANDLING OF COVID 19 IN THE PANDEMIC PERIOD

CIRCULAR LETTER IN HANDLING OF COVID 19 IN THE PANDEMIC PERIOD

By:

Nyoman Mas Aryani

mas_aryani@unud.ac.id

Officially, Tedros Ghebreyesus as the director-general of World Health Organization (hereinafter referred as WHO) on March, 11^st, 2020, in Geneva, has determined that Corona Virus Disease (hereinafter referred as Covid 19) is a Pandemic because it assesses that the spread of the coronavirus is increasing and expanding very quickly to areas far from the center of the outbreak (https://www.kompas.tv/article/70893/who-set-wabah-virus-corona-as-pandemi-global, June, 24^th, 2020). In the official website stated data distribution of Covid 19 globally spread in 216 countries and around 9 million more people were confirmed. Of course, this condition causes a variety of reactions from each country to protect its citizens. Several countries using a different approach to solving this situation both in the form of a lockdown policy, a ban on travel, or the implementation of health protocols. In Indonesia, there were 52,812 people tested positive for Covid 19, which shown in the last update (https://covid19.go.id/, June, 27^th, 2020).

To make quick steps to respond to the conditions and needs of the community in handling Covid 19, the Central and Regional Government should not hesitate in issuing policies to preventing more victims, a degree of authority is needed even though facts on the ground can occur between a policy clash with other policy or ineffective policy because disobedient of the community. The government's actions in policy-making are the hope that awaits the public. In a situation where there is no regulation at all or is unspecified in the higher laws and regulations, but it is an inevitable need for regulating new policy where the time is very urgent in the context of implementing the government, the use of discretion known as "freies ermessen" needed in order smooth governmental duties. Referring to Law Number 30 of 2014 concerning Government Administration, in Article 1(9), stated that discretion is a decision or action determined, carried out by a Government Official to address concrete-issues encountered in the administration of government in terms of laws and regulations. Which provides choices, does not regulate, is incomplete, or unclear affects government stagnation. The right of government officials to use it according to its purpose so as not to create a legal vacuum. For the current pandemic, it is necessary to feel sensitive about the officials seeing the reality of the community so that the policy taken should be horizontal (bottom-up) without having to go through a bureaucracy that takes a long time. This article observes the emergence of various Circular Letters during the Pandemic period has become more widespread and has become a concern among the public regarding their position, content, and legally binding.

In a juridical manner, the source of law-making policy is legislation both inside and outside the hierarchy. Legislation in the legislation hierarchies that regulates in Article 7 paragraph (1) of Law Number 12 of 2011 concerning Formation of Legislation, which determines as follows: (1) The 1945 Constitution of the Republic of Indonesia ; (2) MPR Decree; (3) Government Act / Lieu Law Regulation; (4) Government Regulations; (5) Presidential Regulation; (6) Provincial Regional Regulations and (7) Regency / City Regional Regulations. Furthermore, in Article 8 paragraphs (1) and (2) regulates legislation outside the hierarchy, namely regulations issued by the People's Consultative Assembly, the House of Representatives, the Regional Representative Council, the Supreme Court, the Constitutional Court, the Supreme Audit Board, the Judicial Commission, Bank Indonesia, Ministers, agencies, institutions, or commissions of the same level formed by Law or Government on the orders of the Law, Provincial Regional Representative Council, Governor, Regency / City Regional Representative Council, Regent / Mayor, Village Head or of the same level. Its existence is recognized and has binding legal force insofar as it ordered by higher laws and regulations and is formed based on its authority. When referring to the two Articles, of course, there is no apparent existence of the Circular, so it cannot be classified as a statutory regulation or known as pseudo-wetgeving. But of course, it cannot be seen only from the juridical approach in the realm of legislation where the laws and regulations regulate abstract, general (universal) matters so that they do not elaborate on concrete-matters that were never thought of before by their constituents. Therefore it is necessary to use an approach from the executive realm where government agencies or officials must also take policies to find solutions to problems faced by the community.

Legal facts in Indonesia, according to Philipus M. Hadjon, are known by the existence of policy regulations (beleidsregels) formally cannot be called official regulations because the issuing agency or official-government does not have the authority to make policies (wetgevende bevoegheid). This Policy Rule is indeed something that cannot avoid because it is needed in practice to carry out official regulations. According to Jimly Asshiddiqie, it should state as "policy rules" or policy rules that are usually in the form of Circular, Instructions or Instruction, Work Guidelines, Implementation Instructions, Technical Guidelines, Guidebooks, Terms of Reference or Work Designs. This policy rule made in a written document that is to guide, guide, provide policy direction, regulate the implementation of tasks, and work.

To find out the contents of the material in the Circular, it is, of course, necessary to look at the Regulation of the Minister of Administrative Reform and Republic of Indonesia Number 80 of 2012 concerning Guidelines for Manuscripts of Government Agency Services, in the appendix stated Circular Letters are official documents containing notices of certain-matters that are considered urgent. In Circular Letters, there is importance stipulates the reasons for the need for the issuance of Circular Letters. It also should contain the rules on which the Circular issued and to notify certain-matters that deemed urgent. It has importance because it is the base standard for understanding to avoid material content from circulars which are regeling in nature and contain sanctions in them.

Related to the binding power, according to Bagir Manan, the policy regulations are not directly legally-binding but have legal relevance, in this case, it provides an opportunity for how the government exercises government authority (beschikingbevoegheid). It can say that a policy rule has developed as a legal tool to further dynamic the validity of laws and regulations, which are in the form of administrative written form, apply outside and can directly bind citizens. However, in this period, it is not the time to debate. It must be within a short time to accelerate the handling of the Covid 19 epidemic. It should recognize in the future, necessary to arrange in a more regular direction related to the existence of this Circular both in terms of format, position, material content, following the formation of laws and regulations both from formal and material aspects, their validity or testing.