Streamlining Regulations
The law agenda has become critical for the government of President Joko "Jokowi" Widodo and Vice President Jusuf Kalla. Criticism has appeared because after more than two years in power, the government is only focusing on politics and the economy.
Responding to the various criticisms, as it entered its third year in power in the last months of 2016, the government began to show interest for the legal field. President Jokowi started by revamping regulations. For Jokowi, regulatory improvements are needed to accelerate development, especially in economics, that are frequently hindered by unharmonized, unsynchronized and overlapping regulations that foster uncertainty.
The effort to reform regulations has become a priority for the government in 2017. Moreover, all ministries and institutions have to give much attention to the improvement of regulations. To make sure of this, the President gave directives to the Office of the Presidential Staff, the office of national development planning (Bappenas) and the Justice and Human Rights Ministry.
As part of the regulatory reform, the Home Ministry has canceled 3,000 regulations, mostly regional ones concerning investments, levies, bureaucracy and licensing services to help economic development.
After seeing the government\'s move to improve regulations, the fundamental question much be asked: How make the fundamental steps to streamline regulations more systematic? This question is very basic because complaints against uncontrolled and overregulated regulations are not just current ones and do ont only occur in Indonesia.
Not the laws
When uncontrolled regulations become the main problem that has to be settled, the first step is to find the regulations that led to the overregulated situation. Without doing this properly, efforts to streamline regulations could ruin our legal structure. For example, the Home Ministry\'s recent measure to cancel about 3,000 regional regulations did not necessarily make a positive impact on regional governance.
On many occasions, the President often complains about the many regulations. For example, at a dialogue on "Building the Competitive Economy of Indonesia" at Balai Kartini (30/3/2016), Jokowi said that there was no need for the House to produce too many laws. For Jokowi, as long as the quality was really good, three or five laws were enough in one year. Another statement about the number of laws was again raised by Jokowi when he met with a number of legal circles at the State Palace (22/9/2016).
Complaining about the large number of laws as the cause of uncontrolled regulations is not appropriate. The laws generated each year are much fewer than the number required. Moreover, many laws needed to implement the mandate of the 1945 Constitution have not been passed.
When compared to other countries, few laws are generated in Indonesia each year. For example, Japan, with less territory and population than Indonesia, produces no less than 100 laws in one year, both completely new laws and revised ones. Similarly, the Netherlands, which is far smaller than Indonesia, produces about the same number of laws as Japan.
The President, the House of Representatives (DPR) and the Regional Representatives Council (DPD) do not generate too many laws. The fundamental problem is that the laws are not related to other regulations.
One of the examples, Law No. 23/2014 in lieu of Law No. 32/2004 on local government was stopped as soon as it was enacted. It was impossible to change Law No. 32/2004 into Law No. 23/2014 without revising other laws. According to Japan\'s experience, when a fundamental reform was carried out on its decentralization law in 2000, the changes were followed by the revision of no less than 750 other laws.
Therefore, the number of laws being generated is only a scapegoat for the overregulation issue. The real problem is the lack of harmonization and synchronization with other laws. The habit of ministries and institutions to determine the substance of laws according to their own interests has to be eliminated. Moreover, the deliberation in the DPR also has to be carried out by many commissions.
Sources of the problem
Article 7 paragraph 1 of Law No. 12/2011 on the establishment of legislation possibly caused the overregulated issue through government regulations (PP) and presidential regulations (Perpres).
As stipulated in articles 12 and 13 of Law No. 12/2011, PPs are for implementing the laws and Prepres consists of what is ordered by the laws. Governance relies on both the PP and Perpres.
Based on the record of Nasir Djamil, a member of House Commission III, between 2000 and 2015 the government issued 12,471 regulations, 8,311 of which were ministerial and 2,446 of which were PP, even though constitutionally the ministers are only assistants to the president in charge of certain affairs in the government.
With the authority to form regulations wide open, the ministerial regulations can be so "wild" because they ignore the principles of the legislation and make adherence to the rule of law difficult. One of the causes of legal uncertainty is that ministerial regulations are not harmonized with legislation.
A way out
Corrective measures and the streamlining of regulations have to be directed toward the ministerial regulations, not only because they might bump into many other regulations, but also ignore the authority of the president.
In order to prevent ministerial regulations from further exacerbating problems the authority to establish minisiterial regulations must be narrowed. The simplest way is by eliminating the phrase, "established based on the authority" from Article 8 paragraph 2 of Law No. 12/2011. By eliminating it, ministerial regulations and other rules can only be formed as long as there are orders or direct delegation from higher legislation.
Second, each draft of a ministerial regulation has to follow a process of harmonization in the Law and Human Right Ministry.
It must be realized that efforts to cancel legislation will only slightly help solve the problems.
SALDI ISRA
Professor of Constitutional Law and director of the Center for Constitutional Studies, the School of Law, University of Andalas