The Legal Politics of the Omnibus Job Creation

Kompas/Wawan H Prabowo

The DPR Plenary Meeting at the Parliament Complex, Senayan, Jakarta, Monday (5/10/2020). One of the agenda items is the approval of the Job Creation Bill

A futile debate was inevitable when there were protests over the impact of the "omnibus law" on the Job Creation Law.

It is clear that the bill as thick as 905 pages and 186 articles, which was approved on Monday (5/10/2020), does contain a very high level of details. To understand this, there are more than 70 other laws that must be checked, to find out what articles have actually been amended or deleted. The title is indeed Job Creation, as if it is related only to labor issues. In reality, many other issues are regulated, ranging from business licensing, regional governance, to government administration.

For example, the big question about whether workers are truly disadvantaged was answered by the government by simply saying that the right to severance pay still exists. In fact, there are pitfalls in the details of the chapter, like a phrase which is often used in the world of law: the devil is in the details. The Job Creation Law does still regulate severance pay, but at a much lower value than the previous regulation. Likewise, regarding the withdrawal of a part of regional authority to the center, which must be traced one by one, not only in matters of regional government laws but also in the section that regulates the environment and mining.

Read also: President: Please Go to the Constitutional Court

The big problem is that a law cannot be understood by just reading one or two articles. Regulatory objectives can only be identified after all articles have been explored. However, more than that, it is important to understand in what direction a law will actually lead a society. This is what is called legal politics.

Legislation for what and who?

The effort to read the legal politics of a law is an effort to find out the real purpose of why a law is made. Therefore, there needs to be an analysis of actors and the situation to find out who gets the benefits. An analysis that is based solely on the legal aspect, let alone just the contents of the articles, can trick us into what the initiator of the law actually wants.

Legal politics can be read from two aspects: the process and substance of the law. The substance of the Job Creation Law can actually be traced back to President Joko Widodo\'s inauguration speech and even earlier. What was mentioned is not the phrase "job creation", but the omnibus law, which was expected to facilitate investment, by simplifying regulations, licensing, and various requirements that made business complicated.

Facilitating investment for the welfare of the people certainly deserves appreciation. A record of the complexity of permits and regulations is also an accurate observation. The problem is that the following way of thinking is like jumping to take a shortcut.

Read also: House and Government Convinced

There are quite a number of studies that explain and even prescribe reforms to overcome the complexity of permits and regulations. The strongest message is to establish good governance and anti-corruption. This is done, among other things, by reforming institutions and personnel recruitment. This path is certainly not simple and not brief. Meanwhile, the business world cannot wait. So, the instant solution is the Job Creation Law.

A red carpet is laid out for foreign investors, providing a lucrative investment atmosphere. For investors, low costs for capital goods, such as labor and land, including the environment and natural resource exploitation permits, are certainly an attraction. So, keep those costs down wherever possible.

Workers no longer need to be a big cost factor, are not too difficult to manage, and are easily fired if they are not productive. Inefficiencies in processing the permits that require an environmental impact analysis (amdal) must be trimmed so that land and natural capital do not become a cost burden for the investors. This is done by including a risk-based approach in business licensing. If it is considered not to have a high risk, there is no need to make the amdal. In fact, many prerequisites for implementing this risk-based approach are related to data, which makes experts doubt its effectiveness in Indonesia, plus worries about the misuse of this mechanism.

For the purpose of facilitating business as well, a part of the powers that have been given to the regions are withdrawn to the center. Centrally made policies and permits certainly make it easier for the investors. As a result, the decentralization that has been built since 1998 as one of the demands for reform has been pulled back. The Job Creation Law clearly regulates that authority is withdrawn to the center. It is further elaborated that the center means the President. Even, sectoral regulations that had been in the hands of the ministries are declared by the Job Creation Law as the authority of the President.

This regulatory pattern has the potential to strengthen the power of the President excessively. Moreover, the administration shows the complexity of constitutional order, with the presence of ministers who appear to be dominant. It is possible that the "little kings" in the regions will be pulled back into a special circle at the center of government.

The explanation of the impact can consume pages of newspapers because of the thickness of this law. However, from the matters elaborated above, the legal politics on the ease of doing business at the expense of labor and the environment as well as strengthening the authority of the central government can be seen. Of course, we can debate by giving arguments on the articles, but the legal politics must read between the lines of the text.

Reckless proses

Like car drivers who sometimes drive recklessly to get to their destination, this is what the House of Representatives (DPR) and the government are practicing. The drafting process was carried out in a very non-participatory and transparent manner. With a team dominated by entrepreneurs, bill papers and academic texts were prepared.

The two documents were only published after being included in the deliberation process in February 2020. Criticisms on the closeness were answered by showing that the discussion process in the DPR was partially open. In fact, Law No. 12/2011 as amended by Law No. 15/2019 concerning the Formation of  Legislations emphasizes that the process of forming laws does not deal only with the stage of discussion, but also stages of the planning, drafting, ratification and promulgation.

Read also: A Variety of Arguments to Smooth Over Job Creation Bill

The public needs to be aware of the big difference between the drafting and deliberation processes. The drafting process of the bill is more technocratic, very technical in drafting from the initial texts of the bill. Meanwhile, the deliberation process of the bill is a process that is more political in nature because the articles are not formulated, but negotiated by political actors. The political actors who had the right to be in the process and had a strong influence were of course only the formal political actors, namely the DPR and the President.

KOMPAS/ISMAIL ZAKARIA

Students in West Nusa Tenggara (NTB) hold a demonstration against the approval of the omnibus bill on job creation in front the office of the NTB Regional Legislative Council (DPRD) in Mataram on Friday (9/10/2020). They called on President Joko “Jokowi” Widodo to cancel the ratification of the bill.

Even if there was participation in the discussion process, it can be assured that participation was actually in the form of negotiations, which depended on bargaining position. The bargaining position was built by the forces behind it in various forms. Those without capital, the masses or other forces will not win the negotiations.

Read also: Extra Paradox in the Middle of a Recession

Even though it was said to be participatory, the discussion process was not fully open. Due partly to the pandemic, the desire to move fast was so high that discussions were held in the middle of a recess. The location was also in luxury hotels to avoid the public eye. In an effort to outsmart the public as well, the meeting scheduled for 8 October was changed to 5 October. Even, the objections in the plenary session were ignored and voting requests were also rejected. In this hasty and hidden process, too, a bundle of taxation materials were included without proper discussion two weeks before being approved. In fact, this material was planned to become a separate omnibus law so that the contents were not trivial and not simple.

Judicial supervision

The next question is, what can be done to prevent the destructive impact of this law? On paper, we can talk about government regulations in lieu of laws (Perppu). However, apart from requiring coercive crunch, the issuance of the Perppu is entirely up to the President. It should be noted, it is precisely the President who ordered this Job Creation Bill. Predictably, Perppu is not an option.

Read also: Job Creation Bill Not a Solution

Another forum that can be taken is a review at the Constitutional Court. A law can undergo a judicial review, which focuses on the contents of the articles, or a formal test, which challenges the legislative process. The judicial review will affect the articles being tested. Meanwhile, if the judge grants the formal test, the entire law will be null and void. By looking at the process that is far from appropriate, especially coupled with open disapproval from the factions of the Democratic Party and the Prosperous Justice Party, the potential for the annulment of this law is quite large.

WAk

Bivitri Susanti

The arguments regarding the benefits are also not easy to defend because the absence of this law even creates greater benefits if the measure of benefits is the common people. We must be aware of the influence of politics on the world of justice. However, in a democratic country, there is a function of judicial control that must be executed over the legislature and executive. Even though it cannot be separated from political influence, at least the world of justice operates on legal arguments based on a rigorous process of proving. Not by hiding in hotels or turning off the loudspeaker in a meeting.

Bivitri Susanti, Lecturer at Jentera Indonesian Law College; Chairperson of the Association of Constitutional Law and State Administrative Law Lecturers for the Greater Jakarta Region