Legal Politics of Job Creation Bill
The “job creation bill” and “omnibus law” are two phrases that are now frequently discussed.
The “job creation bill” and “omnibus law” are two phrases that are now frequently discussed.
The reason is because this bill uses the omnibus method, which combines so many laws into one bill. There are 11 clusters, containing only 174 articles but examining about 1,000 in 79 multisectoral laws. Of course, there is big question about the party politics behind this bill. Before talking about the legal politics, carrying out this bill would mean important things related to the paradigm of the state. The paradigm has a close relationship with the legal politics. Moreover, this paradigm should be harmonized if translated into the concept of legal politics as a matter related to policy making. This paradigm studies the perspective of the underlying policy. We all understand that this is an effort the government wants to make to facilitate investment and overcome the complexities of legislation with regard to this.
It cannot be denied that the economy plays an important role in the life of the state, but by placing it into the zero sum situation it shows a way of thinking that is too simplistic. This is similar but not the same as the developmentism of the Soeharto era, which encouraged economic growth at the expense of other aspects of statehood. Criticisms against this approach have been countless.
This law clearly shows that for the sake of rolling out a red carpet for investment, there are so many things that would be cut through. In fact, we understand, there is a real boundary between the investment process and the improvement of the economic climate, which is not solely through the legislative regime. There are so many other influencing factors that seem impossible to heed, such as legal certainty and law enforcement and the eradication of corruption (Rimawan Pradiptyo, 2019). The bill convincingly posits that the law and some aspects of human rights are hindering investment and must therefore be sidelined.
Moreover, there is a nuance involving the centralization of the power of the central government through the president in this bill. Local governments are being sidelined. Of course, it is not entirely wrong, especially for those who uphold the paradigm of the presidential system and the doctrine of the unitary state because that is the way a presidential system is, resembling a king because of a single power in one person. However, do not forget the words of Alexander Hamilton: The president in the presidential system is a king who is given limits to his power by the constitution. The point is to have constitutional restrictions and when a power buildup is carried out by the president without clear and strong constitutional boundaries, a tendency to authoritarianism will easily occur.
Besides criticism of the paradigm, legislative materials must also be seen formally. In terms of the paradigm, a reminder is needed that the essence of legislation is not merely what the legislators want, but what the public wants. The principle of democracy states that the lawmakers, the president and the House of Representatives in a presidential system are an extension of the people\'s sovereignty. They are just the executors of the people\'s wishes. In the perspective of Bryan Thompson (2001), constitutionality over the workings of the state must come from a basic law and only be binding if it is based on the highest authority (sovereignty) in a country.
When that power has been given, they are obliged to obey and abide by the concept of limitation of power embedded in the state and pay serious attention to the wishes of the people, as a source of sovereignty possessed by the state in exercising its authority. To put it simply, is the law born from the wishes of the legislators who feel that what is good and right is carried to the citizens, or should it also be within the wishes and aspirations of the people who want to be regulated in a certain way? It is important to put an initial critical note on the job creation bill.
The concept of legal politics
In addition to the matter of paradigm, what is equally interesting is looking at the concept of legal politics, which in the concept of Mahfud MD (2004), can at least be translated into three things. First, the "blueprint" of the policies and regulations being idealized. Second, political tug of war on the process in the discussion space and approval of legislation. Third, the expected implementation and whether it can be controlled by the policies.
Of the 11 clusters being affected in this bill, it is unclear what would be built in the future from the theme of the clusters.
The blueprint is actually the concept of legislation related to all laws and the system that is expected to be built in the future in the policies that will be made. It contains a holistic view, both philosophically, judicially and sociologically. At the very least, it is present in the academic paper. Of the 2,278 pages of academic manuscripts being written, there is not much said about the kind of building being expected in making the concept of laws in the future. Of the 11 clusters being affected in this bill, it is unclear what would be built in the future from the theme of the clusters.
For example licensing, in the future what licensing concepts will be achieved? Especially in that cluster there are so many things that are related: forestry, environment, land and others. That means it must not only be details in the blueprint building in the licensing area, but also what is the state\'s perspective on the affected sector? Because the laws are not einmaleigh (to be used only once), they must be able to project in a forward-looking way what is expected in the future. Likewise with other clusters other than the licensing matters.
In the blueprint, the possibility of a tug of war over political interests must also be watched out for. Whoever understands it, the law is indeed a result of political interests. However, that is where the functions of the constitution and legislation provide space so that it does not merely fulfill political rules, but also the public\'s wishes. Therefore, a space called participation, aspirations and various adjustments and other input should be opened. Article 96 of Law No. 12/2011 concerning the Formation of Legislation (UUP3), for example, clearly states that public participation is very important.
As this article regulates, the public has the right to provide input orally and in writing, through hearings (RDPU), work visits, dissemination of information or seminars, workshops or discussions. The people here are all those who have an interest and because of that the bill should be made easy to access. In the drafting of the job creation bill, all of these things are violated. There is nearly no participation, or transparency and it seems to be in a hurry. There is no enrichment of discourse as a form of participation that is ordered in UUP3.
The danger is that the concept of making laws in Indonesia indeed holds a high possibility of experiencing politicization and the exchanges of interests. The participation of the president in discussing and approving laws has resulted in the position of the president being very strong in the drafting of laws. This strong position – although at the same time the Constitution gives legislative authority to the House – makes the president very likely to exchange interests in making laws. In the midst of the large political interests in the House, the exchanges of interests will easily occur. This has been seen in various laws, such as Law No. 19/2019 concerning Amendments to the Corruption Eradication Commission (KPK) Law.
No less urgent is ensuring its implementation. It has been seen that the government\'s perspective ensures implementation by throwing everything technical into government regulations (PP). Of the existing bills, there are about 500 norms for delegation to the PP level. With the ideals of streamlining regulations, imagine how this idea is jauh panggang dari api (far from what is expected). The danger of delegating to this PP is to increase the possibility of presidential discretion in the regulating. Not only that, the swelling of the president\'s authority can be imagined with the existence of Article 170, paragraphs (1), (2) and (3) in this bill, which confirm that for the implementation of the job creation law, the central government is authorized to make changes to the provisions with PPs through consultations with the House.
The government seems to wholly control the provisions of the Constitution, even other legislation in the formation of legislation. With the possibility of the existence of 500 PPs, the swelling and monopolization of government authority would very easily happen.
Choosing the omnibus method
Regarding legal politics, the choice of policy methods is also interesting to note. Simply put, this omnibus method does have several advantages in being able to quickly tidy up and harmonize overlapping and irregular laws. Indeed, there is no uniformity of the terms and practices for their use. However, according to the Duhaime Legal Dictionary, in the simplest terms an omnibus law is, "A draft law before a legislature which contains more than one substantive matter or several minor matters which have been combined into one bill, ostensibly for the sake of convenience."
The first problem is the extent of one or two substantive things or several minor ones. Practices generally reveal that an omnibus is used for several clusters that are more similar, for example relating to budget implementation (as is the practice in Canada and the United States) even though there are practices that are too broad and large (as in Ireland). Widespread practices always gets strong criticism. Especially with the job creation bill, which combines 11 clusters that have a non-uniform legal style and paradigm. When combined in one uniform concept, it is very likely to become a problem.
Technically, there are also so many concepts in the discussion of legislation that are regulated in several laws that are passed through this regulation. For example Law No. 12/2011 or Law No. 17/2014 concerning the People’s Consultative Assembly (MPR), House, Regional Representatives Council (DPD) and Regional Legislative Councils (DPRD), or other technical regulations that are spread in the Code of Conduct. Maybe indeed the state is not ready to adjust the rules for the formation of the legislation using the omnibus model.
However, the ball has been thrown to the House. It is far nobler for the House not to continue the discussion process, but rather to ask the government to fix the chaos of paradigm, legal politics and the choice of an overly large omnibus method. Hopefully the House wants to straighten out this erroneous legal political territory and not just pass the government\'s wishes straightaway.
Zainal Arifin Mochtar, Lecturer, Gadjah Mada University (UGM) Law School, Yogyakarta; Researcher, Center for Anti-Corruption Studies (PuKAT), UGM Law School