Formal Review and Legislative Twilight
Such “reckless” legislation with legal politics no longer favors the community or honors the purpose of the law itself. The state is only looking for a justification for the acts of legal production.
Heryunanto
The state now seems to have the tendency of acting in its own interests in forming laws.
Such "reckless" legislation with legal politics no longer favors the community or honors the purpose of the law itself.
The state is only looking for a justification for the acts of legal production. Legislation is becoming just a formality, lacking essence and substance.
In fact, legislation is not a simple job. It is sacred in essence. Legal products have the binding legal power of “dos and don’ts” for the public.
Regardless of the public rejection of capital punishment, certain laws in Indonesia, when violated, can be used as a justification to take someone\'s life.
With the logic of "social contract" requiring the people to give a mandate to the state to regulate their lives, there should be boundaries for the state to fulfil the entrusted authority.
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The people leave their sovereignty to the state through the process of electoral representation and political contestation. The elected governing actors must carry out the wishes of the people who have placed their trust in them, including in the formation of laws.
The principle of democracy states that legislators, namely the president and lawmakers in a presidential democratic system, are the extending arms of the people\'s sovereignty. They are "only" the executors of the wishes of the people.
In Bryan Thompson\'s perspective on constitutionalism, the constitutionality of the work of the state is binding only if it based on the highest mandate of power (sovereignty) in a state.
Being handed that power, the state is obliged "to obey and fulfil the concept of limited power attached to the state" and "to seriously address the wishes of the people", as a source of the state’s sovereignty in carrying out its authority.
Legal formal review
Therefore, the legal formality and substance of a law must be based on the wishes of the people in the form of public participation and drafted material – the substance of the law.
Both the formal and material legal sources are like one breath drawn into the process of legislation. This means that constitutional legislation must pay philosophical attention to these two entities.
The spirit of that provision is conveyed in Law No. 12/2011 on legislation. Article 1 point 2 holds that "written regulations contain legally binding norms in general and are established or determined by state institutions or authorized officials through procedures stipulated in legal statutes".
The provision of "through procedures stipulated in the legal statutes" is a confirmation that the formal aspect is essential. The formal aspect is an important requirement for public legitimacy. Power must be limited so that it is not used arbitrarily. In this case, the law must definitely go through that concept.
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That is why, in the theoretical concept of law formation, procedure is the heart of the administrative legislation process. "Without procedure, laws and legal institutions will fail to achieve goals," DJ Galligan says.
In the discussion of amending the 1945 Constitution, aspirations were apparent regarding formulating the legislative process more distinctly on at least three levels: a shift in the power of legislators, the process and mechanism of legal formation and supervision over legislative power through a review mechanism.
The first two levels, as we know, have seen a shift in the power of legislators from the president to the House of Representatives. Saldi Isra\'s 2009 dissertation reveals that this shift does not necessarily support the authority of the House but instead gives the sitting president a strong position in the realm of legislation.
Despite the legislative power in the House, the undeniable fact is that the sitting president still holds the veto right in the discussion.
Didie SW
However, regarding the third level, namely when talking about judicial review as a means of control to ensure that laws are not enacted haphazardly, the discussion was not balanced between formal and material reviews.
Although we all understand that the concept of judicial review adheres to material and formal reviews, during the discussion of the 1945 Constitution, especially the amendments regarding the second and third levels as mentioned above, the focus was mostly on material review. When the amended 1945 Constitution was agreed upon and followed up by issuing Law No. 24/2003 on the Constitutional Court, the concept of judicial review was already accommodated.
The legal formal review would have potentially posed a tug-of-war of interests if it had still followed Article 51 paragraph 3 letter A of Law No. 24/2003.
This article stipulates that when submitting a petition for legal review, the applicant has to explain in detail why "the formation of the law does not comply with the provisions of the 1945 Constitution of the Republic of Indonesia".
In fact, the provisions of the 1945 Constitution regarding the formation of laws used to be minimal and superficial. That’s why, in its first time discussing procedural legislation, the Constitutional Court broadened the spectrum, as stipulated in Constitution Court decree No. 06/PMK/2005 on cases of judicial review. It says, "A formal review is a judicial review pertaining to the process of legal formation and other things that do not fall in the area of material review”. (Article 4 paragraph 3)
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When the Constitutional Court Law was amended in 2011, an article was included in Article 51A paragraph 3 of Law No. 8/2011 that read, "In the case of a petition for a formal review, the assessment and decision is to be carried out by the Constitutional Court based on the laws and regulations governing statutory procedures".
This expands the concept of the formal reviews that can be carried out because they are no longer restricted to the 1945 Constitution but now apply to the laws and regulations governing legislation.
With this concept, formal reviews do not necessarily look into the legislative procedural process as previously mentioned in the Constitution, but rather other areas outside that of material review that have been outlined in the laws and regulations governing the legislation.
Legislative twilight
Unfortunately, entering its 18th year of existence, the Constitutional Court has yet to create a judicial review product that is monumental, despite the fact that it has been reviewing many legal formal sources.
As of 2020, the Constitutional Court had reviewed and handed down decrees on 44 petitioned formal reviews (Nurul Fazrie and Bivitri Susanti, 2020). None of the applied requests were granted, including one on the KPK Law (Case No. 79/PUU-XVII/2019).
We are aware how discouraging it is to see how lawmakers are carrying out their legislative functions. Legislation is often put forward only as a formality, especially in the area of public participation. The message of Law No. 12/2011 on legislation is ignored.
As Sherry R Arnstein (2016) writes, by borrowing Burns’ (2014) term “tokenism”, public participation has become only a formality to fulfill the requirements of the formation of regulations.
During the ongoing pandemic, instead of improving, the legal landscape is getting blurrier. A research report by the Center for Law and Policy Studies (PSHK, 2021) on legislation throughout 2020 explains several drawbacks that made the legislative situation, to a certain extent, worse.
The drawbacks are, one, incessantly poor planning and, two, underachieved legislation. Ambitions were high, but only 13 laws were completed, and even then they were mostly ratifications of international treaties. The third drawback was the degrading function of the national legislation program, and the fourth was the ubiquitous low quality of the legislative function, not only in the articulation of the ideas but also in striving to achieve the expected goals in the legal politics of a state.
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In fact, the pandemic situation should serve a turning point for the House to strengthen its legislative function to address the nation\'s problems. On the contrary, it has allowed for the issuance of controversial laws, such as the revised KPK Law, the Job Creation Law and the Constitutional Court Law.
Seen from the aspect formal review, many laws are actually problematic, not to mention their material aspect. Why? Because formal violations of legislation are correlated with unpopular provisional materials, due to either deliberate or hasty inclusion.
Therefore, the Constitutional Court is required to prove its constitutional responsibility. Various cases of formal reviews have so far shown that the Constitutional Court is not yet implementing strong, constitutional parameters to measure the extent of the formal constitutionality.
The Constitutional Court has not issued a "monumental decision" as the guardian of the constitutional rights of citizens.
The Constitutional Court is the yearned for hope for justice. The challenge is getting bigger for the Constitutional Court to be able to serve as a beacon of light in the twilight of legislation. Hopes abound that it will stop a phenomenon that Kim Lane Scheppelle calls "autocratic legalism".
Zainal Arifin Mochtar
This situation occurs when all the wishes of the state are regulated by law to fulfill one mandate of democracy but the provisions are only one-sided, with the interest being in favor of the state, disrespecting the principles democracy and being awash with constitutional ambiguity.
Zainal Arifin Mochtar, Lecturer and head of the Department of Administrative Law at the Gadjah Mada University (UGM) School of Law; member of the Advisory Board of Pukat Korupsi.
This article was translated by Musthofid.
