Limitation of The President’s Power to Declare A State of Emergency Muhammad Yoppy Adhihernawan, Hernadi Affandi 145 Jurnal Penelitian Hukum De Jure Volume 22 Number 2, June 2022 P-ISSN: 1410-5632, E-ISSN: 2579-8561 Accredited No: 10/E/KPT/2019 This work is published under license Creative Commons Attribution 4.0 International License LIMITATION OF THE PRESIDENT’S POWER TO DECLARE A STATE OF EMERGENCY: A COMPARISON OF FRANCE, INDIA, AND INDONESIA Muhammad Yoppy Adhihernawan, Hernadi Affandi Departemen Hukum Tata Negara, Fakultas Hukum, Universitas Padjadjaran, Bandung, Jawa Barat Corresponding author. Email: yoppyadhi@gmail.com Paper received on: 25-03-2022; Revised on: 10-06-2022; Approved to be published on: 20-06-2021 DOI: http://dx.doi.org/10.30641/dejure.2022.V22.145-162 ABSTRACT The state must declare a state of emergency under certain conditions that endanger the safety of the state and society. Limiting the power to the declaration of a state of emergency is essential because this great authority cannot be used according to the President’s will, so it is necessary to have restrictive mechanisms so that the President does not misuse the authority to carry out the emergency. However, the Indonesian constitution does not stipulate any restrictions on the powers of the President in declaring a state of emergency. This study aims to determine the dangers of not limiting the President’s powers in declaring a state of emergency in the Indonesian constitution by using the arrangements and practices of emergency law in France and India. The approach used in this study is a comparative level that compares the contents of the constitution’s text and compares the implementation and history of the constitution. The result of this study is limiting the power of the President in declaring a state of emergency is necessary based on a comparison of arrangements and experiences in France and India. Therefore, Indonesia must restrict the President’s power in declaring a state of emergency to its constitution. Keywords: constitution; emergency; misuse; president; restriction INTRODUCTION The condition of a country is not always in a state of peace. Under certain conditions, sometimes a country experiences an emergency and is forced to declare a state of emergency. That is the background for a country to have a regulatory mechanism related to handling emergencies so that its condition can return to its state of peace. This arrangement serves to carry out an act of power that is extraordinary or an exceptional measure. The state of emergency also serves as a legal distinction between the emergency and ordinary constitutional law. It serves as a safeguard to prevent abuse of power from arising in such extraordinary circumstances. 1 A state of emergency is crucial to implement when a country is threatened by a condition that can damage the existence of that country, damage democracy, or threaten human rights and the life of citizens. According to Clinton L. Rossiter, the concept of emergency law exists to save democracy even though it has to go through 1 Jimly Asshiddiqie, Hukum Tata Negara Darurat (Jakarta: PT Rajagrafndo Persada, 2007), 58. enormous sacrifces, as in World War II. 2 David Dyzenhaus said that the declaration and response to an emergency in a country that adheres to the rule of law principle should be regulated by the law. So, it becomes crucial to protect individuals from arbitrary actions by the state even though the state is in a state of emergency. 3 Regulations related to the state of emergency in the Indonesian constitution can be found in Article 12, which reads, “The President declares a state of emergency. The conditions governing and the consequences of a state of emergency shall be stipulated by-laws”. According to Bagir Manan and Susi Dwi Harijanti, Article 12 of the Indonesian constitution aims to declare the country in a state of emergency (in staat van gevoar verklaren or gevaar omstandigheden) if there is a threat to the state, such as a threat to the safety of the people or the territorial integrity of the country. 4 2 Clinton L. Rossiter, Constitutional Dictatorship (Princeton: Princeton University Press, 1948), 314. 3 David Dyzenhaus, Legality in a Time of Emergency (New York: Cambridge University Press, 2006), 2. 4 Bagir Manan and Susi Dwi Harijanti, “Government