Coronavirus Disease 2019 (COVID-19) has been declared by WHO as a pandemic and Indonesia has declared COVID-19 as a non-natural disaster in the form of a disease outbreak as written in the Circular Letter of the Minister of Health of the Republic of Indonesia Number HK.02.01/MENKES/202/2020 concerning Self-Isolation Protocol in Handling Coronavirus Disease (Covid-19). The Covid-19 outbreak itself is no longer a concern of the Indonesian people alone but all countries in other parts of the world, therefore each country through its government has different ways to reduce the number of spread of the virus itself.

Through his speech from the Bogor Presidential Palace, Tuesday (31/3/2020) President Joko Widodo appealed to all Indonesian people to overcome the impact of the spread of Covid-19 in the country, the government has decided to implement Large-Scale Social Restrictions (PSBB) in the community, while the decision refers to Article 1 point (11) of Law No. 6/2018 on Health Quarantine.

In his speech, President Joko Widodo also called on the Indonesian National Police to take measurable law enforcement measures in accordance with the law so that the PSBB can be applied effectively and achieve the goal of preventing the spread of the outbreak.

Following up on the speech, the National Police seemed to move quickly to take action against anyone who did not heed the SPBB, quoted from Wartakotalive, a joint patrol team of Polda Metro Jaya and the TNI, arrested 18 people from two different locations in Central Jakarta, because they were considered violating the provisions of the Large-Scale Social Restrictions (PSBB) to prevent the spread of the Corona Virus (Covid-19), Friday (3/4/2020). The 18 residents were taken to Polda Metro Jaya, after ignoring three appeals from officers who asked them to disperse, they were then examined and recorded at the Metro Jaya Police Headquarters, the 18 people have been named as suspects but not detained.

They are considered to have violated Article 93 and Article 9 of Law Number 6/2018 on Health Quarantine as well as Article 218 of the Criminal Code on Crowds that do not heed the officer’s appeal to leave, with a sentence of 1 year in prison and or a fine of IDR 100 million.

Are Criminal Sanctions Appropriate for Citizens Who Violate the Presidential Appeal Regarding Large-Scale Social Restrictions (PSBB)?

Surely some of us are wondering whether the steps taken by the government to prevent the spread of Covid -19 are appropriate with the implementation of Large-Scale Social Restrictions (PSBB)? And should criminal sanctions be received for people who violate the appeal of Large-Scale Social Restrictions (PSBB)?

Before the existence of Government Regulation of the Republic of Indonesia Number 21 of 2020 concerning Large-Scale Social Restrictions in the Context of Accelerating the Handling of Corona Virus Disease 2019 (Covid-19), basically the term PPSB was already contained in article 1 paragraph (11) of Law No. 6 of 2018 concerning Health Quarantine which is one of the references in the PP.

‘Large-Scale Social Restrictions (PSBB) are restrictions on certain activities of residents in an area suspected of being infected with disease and/or contaminated in such a way as to prevent the possibility of spreading disease or contamination’, and the application of PSBB itself is only limited to Activity Restrictions, not an Area Quarantine which prohibits activities in an area.

The Indonesian National Police in this case also plays an important role so that citizens do not hold social activities that cause mass gatherings in large numbers both in public places and in their own environment, this is stated in the Decree of the Chief of the Indonesian National Police Number: Mak/2 / III / 2020 concerning Compliance with Government Policies in Handling the Spread of Corona Virus (Covid-19).

Based on this, the Indonesian National Police will take firm action for people who do not comply with the government’s appeal not to carry out social activities outside the home, in this case the Police will apply Article 212, 216 and Article 218 of the Criminal Code and Article 93 of Law No. 6 of 2018 concerning Health Quarantine for anyone who still violates the government’s appeal.

Article 212 of the Criminal Code states that ‘Any person who by force or threat of force resists an official in the performance of his lawful duty, or a person who by virtue of a statutory obligation or at the request of an official renders assistance to him, shall, being guilty of resisting an official, be punished by a maximum imprisonment of one year and four months or a maximum fine of three hundred Rupiahs.’

The article clearly states ‘Whoever by violence or threat of violence resists an official who is carrying out a legitimate duty’, in other words Article 212 of the Criminal Code can be applied if there is violence or threats of violence against officials who are carrying out their duties, and R. Soesilo in his opinion explained that Article 212 of the Criminal Code is a provision that is applied for example when someone is about to be arrested by police officers and then resists by hitting and kicking the officers, then the police themselves should not be able to apply the article to people who have been warned about PSBB but the person does not make resistance or threats to the officers.

Article 216 paragraph (1) of the Criminal Code states that ‘Any person who with deliberate intent does not comply with an order or request made under the law by an official whose duty it is to supervise something, or by an official by virtue of his duty, as well as by an official empowered to investigate or examine a criminal offence; as well as any person who with deliberate intent prevents, obstructs or frustrates an act for the execution of a statutory provision carried out by one of said officials, shall be punished by a maximum imprisonment of four months and two weeks or a maximum fine of nine thousand rupiahs.’

The definition of the article explains that an action that can be punished is when a person or group of people deliberately does not follow an order from a state official such as the police not to do something prohibited by the law or prevent/obstruct acts prohibited by the law, then the police can take actions that according to the law are justified.

Where in PP Number 21 of 2020 concerning Large-Scale Social Restrictions in the Context of Accelerating the Handling of Coronavirus Disease 2019 (Covid-19), activities are only restrictions, not prohibitions, in other words, the PP also does not include prohibitions on carrying out social activities.

Article 4 of Government Regulation No. 21 of 2020 concerning Large-Scale Social Restrictions in the Context of Accelerating the Handling of Coronavirus Disease 2019 (COVID-19) also states that the restrictions carried out include activities in public places or facilities where the Government is obliged to pay attention to the fulfilment of the basic needs of the population.

Article 218 of the Criminal Code states that ‘Any person who on the occasion of a gathering of the people deliberately does not immediately leave after having been ordered three times by or on behalf of the competent authority, shall, being guilty of participating in a gathering, be punished by a maximum imprisonment of four months and two weeks or a maximum fine of six hundred rupiahs.’

Some of the elements of this article that should be interpreted are ‘gathering’. The crowding referred to in this article is the act of a group of more than one person carried out unlawfully, the act is not done in a peaceful and quiet manner. Gathering also contains the element that the act poses a threat to others and violates the provisions of the Act. Therefore, not all acts of crowding can immediately be dispersed by authorised officials or can be said to be acts that violate the Law, only acts of crowding that violate the Law can be punished.

Article 93 of Law No. 6/2018 on Health Quarantine is often associated with violations of Large-Scale Social Restrictions (PSBB) which explains that ‘Any person who does not comply with the implementation of Health Quarantine as referred to in Article 9 paragraph (1) and/or obstructs the implementation of Health Quarantine so as to cause a Public Health Emergency shall be punished with a maximum imprisonment of 1 (one) year and/or a maximum fine of Rp. 100,000,000.00 (one hundred million rupiah).’

Meanwhile, Article 9 paragraph (1) of the Health Quarantine Law states that everyone must comply with the implementation of Health Quarantine.

In this case, every person living in the territory of the Republic of Indonesia is forced to comply with the implementation of health quarantine.

What should be underlined from the government’s appeal regarding the handling of Covid-19 transmission is the purpose of the Implementation of Health Quarantine as stipulated in Article 3 of the Health Quarantine Law which has a purpose:

1. protect the public from diseases and/or Public Health Risk Factors that have the potential to cause Public Health Emergencies;
2. prevent and counteract diseases and/or Public Health Risk Factors that have the potential to cause Public Health Emergencies;
3. improving national resilience in the field of public health; and
4. provide protection and legal certainty for the public and health workers.

For now, what the Indonesian people expect from the government is clear, namely that the government can ‘provide protection and legal certainty for the community’ as contained in Article 3 letter d of the Health Quarantine Law, not the other way around by giving appeals to the public or being threatened with arrest and criminal sanctions if they do not comply.

If government policy refers to Law No. 6/2018 on Health Quarantine, what cannot be separated is the rights of its people as stipulated in Article 8 of Law No. 6/2018.

‘Everyone has the right to obtain basic health services according to medical needs, food needs and other daily life needs during Quarantine.’

With the health quarantine emergency status not yet determined by the government of the Republic of Indonesia, according to the author, the imposition of criminal articles in Law No. 6/2018 is not appropriate, Article 10 explains:

‘The Central Government establishes and revokes Public Health Emergencies.’

In Article 59 of Law No. 6/2018 on Health Quarantine:

• Large-scale Social Distancing is part of the Public Health Emergency response.
• Large-Scale Social Restrictions aim to prevent the spread of an ongoing Public Health Emergency disease between people in a certain area.
• Large-Scale Social Restrictions as referred to in paragraph (1) include at least:
• school and workplace holidays;
• restrictions on religious activities; and/or
• restrictions on activities in public places or facilities.

Referring to Article 59, in practice several regions have carried out PSBB as stipulated in Law No. 6 of 2018 on Health Quarantine such as DKI Jakarta, West Java, Central Java, East Java and other regions.

Civil emergency status or Health Quarantine in the face of Covid-19

On the other hand, the President delivered in a limited meeting (teleconference) the Covid-19 Task Force report at the State Palace on 30 March 2020.

‘I ask that the Large-Scale Social Restrictions physical distancing policy be carried out more firmly, more disciplined and more effective. I have said earlier that it is necessary to be accompanied by a civil emergency policy.’

The statement was delivered by the President in the midst of growing public concern regarding the spread, increase in ODP, PDP due to covid-19.

Although according to the Presidential Spokesperson, the status of civil emergency is the last step, according to the author, it is not appropriate in dealing with the Covid-19 outbreak situation.

Civil emergency is the status of handling problems regulated in Government Regulation in Lieu of Law (Perppu) Number 23 of 1959 concerning State of Danger. Civil emergency or military emergency or state of war, if:

1. Security or law and order in the entire territory or in part of the territory of the Republic of Indonesia is threatened by rebellion, riots or due to natural disasters, so that it is feared that it cannot be overcome by ordinary equipment;
2. The outbreak of war or danger of war or fear of rape of the territory of the Republic of Indonesia by any means whatsoever;
3. The life of the State is in danger or from special circumstances there are or are feared to be symptoms that could endanger the life of the State.

Constitutional Law Expert Bivitri Susanti said that it is very inappropriate for the government to use a civil emergency to break the chain of the spread of Coronavirus Covid-19. Because in its implementation, civil emergency prioritises the interests of the state to maintain security, then overrides the obligation to meet the needs of people affected by the virus.

‘The security approach is dangerous for human rights. Because according to the science of constitutional law, it is called an emergency condition, the ruler of a civil emergency or military emergency, a war emergency may violate human rights in the name of security. What we are facing now is not a rebellion but a virus. So the approach should be a public health approach’.

As of this writing, the author assumes that the central government in this case has not fully implemented the contents of the article, which can cause confusion/uncertainty in the community whether the status of the state is in an emergency? Or vice versa? However, when viewed from the attitude taken by the police who were so assertive in dispersing the crowd and even naming someone as a suspect for not heeding the government’s appeal regarding Large-Scale Social Restrictions (PSBB), the state should have been declared in an emergency situation and the Regional Quarantine should have been implemented to prevent Covid-19 itself.

In terms of the continued increase in Covid-19 transmission from day to day that occurs in this country, we as good citizens should follow the steps made by the government, but we as citizens also hope that the government should not be every firmness shown in preventing the spread of Covid-19 is always juxtaposed with criminal threats, which according to the author that the public must still be made aware in good ways where both central and regional governments must be uniform and consistent that Covid-19 is very dangerous and can threaten the lives of all citizens if it is not taken seriously and prevented.

As described above, the use of Law Number 6 of 2018 concerning Health Quarantine in dealing with Covid-19 is the most appropriate thing, although of course in its implementation there are many things that must be prepared by both the government and the community because it gives rise to rights and obligations, it must be implemented jointly and continuously.

Repressive actions should be avoided, because it is fitting for the government to protect its citizens, moreover, public neglect of the dangers of Covid-19 by continuing to carry out gathering activities in public spaces is not always because the community does not care about the government’s appeal, But it could also be due to the factor of confusing news from the beginning, which was even conveyed by figures or officials of this country stating that Covid-19 cannot live in the tropics or in countries on the equator, Covid-19 can be cured by drinking herbal medicine, and others, so that some people think that Covid-19 is not a serious problem even though it has been recorded that many have died because of Covid-19, including those experienced by Indonesia.

In addition, the lack of uniform public awareness to stay at home is not because people do not care about the policies issued by the government, or not because they do not understand the dangers of Covid-19, but they have no other choice but to stay out of the house because they have to work to make a living/work or risk losing their income or losing their jobs because there are still several companies that have not implemented a policy of cancelling all employees or at least a work from home policy in the midst of the Covid-19 outbreak which continues to expand its distribution area.

For this reason, in order to invite all levels of society to help fight the Covid-19 outbreak in Indonesia, then do it persuasively on the appeals that have been issued by the government, start to always honestly convey a fact about the dangers of Covid-19, as well as the readiness and obstacles that the government faces if not supported by all levels of society, not by means of criminal prosecution, although the author believes that the arrest action is also not immediately carried out without appeals when finding some people who are still doing activities outside the home in groups / crowds.

The author believes that the Indonesian Nation is a dignified nation that highly upholds its eastern culture, so it is necessary to raise empathy within the community, mobilise strength and solidarity to all Indonesian people that the common enemy of this nation is not people with different political choices, not different religions, not ethnicities and social strata but the enemy of this nation is Covid-19 which must be stopped from spreading so that Indonesia will be free from it. Criminal prosecution will only cause this nation not to focus on one goal, namely stopping Covid -19, because law enforcers will handle a lot of legal proceedings against people who do not carry out self-quarantine by staying at home.

Author: Dedy SW.

Editor: M. Rofi