Participation is not a ghost. There is no need to be afraid of a participatory legislative process if the legislators understand democracy and do not have bad intentions to make legislation that only benefits their group
By
Bivitri Susanti
·5 minutes read
The most recent case is the Draft Criminal Code (RKUHP). Totaling 632 articles, the Criminal Code is like the mother of all Indonesian criminal arrangements. In it, what is regulated starts from principles regarding punishment, including types of criminal sanctions, to articles on criminal acts that we know today, such as fraud, corruption and sexual violence. The Criminal Code is so important. However, it’s importance turned out not to be directly proportional to the discussion process, which lacked participation.
The writings of Kompas journalist Susana Rita Kumalasanti regarding flash legislation (Kompas, 5/7/2022) are true, but unfortunately they are not the only form of reckless practice in our legislative process. The problem is not only the number of days, but also the extent to which the participatory law-discussion process is carried out. We have to protest that the discussion of the Law on the National Capital of Nusantara (IKN) was completed in a matter of days, considering this is a matter of relocating the nation's capital, and there are developmental impacts for both the people who are already there and the environment.
However, more than that -- in its process, the participation of indigenous people in East Kalimantan was ignored. We objected to the discussion of the Job Creation Law which was also fast-tracked. We can argue about whether nine months were enough to cover 1,187 pages, but the real issue is not the length of time, but the absence of meaningful participation, as decided by the Constitutional Court and as caused the law to be declared by the Constitutional Court to be conditionally unconstitutional.
This is where we have to break up the idea that uses terminology in democracy, but is substantively undemocratic: people's representatives. The concept of representative democracy is frequently used as a reference to justify elitist or top-down policy making. The assumption is, because the members of the House of Representatives (DPR), the Regional Representatives Council (DPD) and the President are the people's choice, they have a full mandate to make policies for and on behalf of the people, without discussing it again with those who have voted for them. The law is considered as a social contract (to borrow John Locke's term) and the contract maker is assumed to be the recipient of full power from the person who will be bound by the law. The good news is that this theory is no longer contextual.
When hundreds of years ago theories about representative democracy and social contracts were created, states were not as large and plural as they are today. The gap in the form of access to information, wealth and power was not as wide and complex as it is in this 21st century. That is why the theory of deliberative democracy was built and put into practice. Deliberative democracy basically says that decision-making cannot be done recklessly by the people's representatives, based on the theory of representative democracy.
Simply put, deliberation is a decision-making process carried out with in-depth and equal discussion to consider various options first and their impacts (Rawls, 1971; Habermas, 1981). A word that has a somewhat similar meaning may be musyawarah (consultation), but the word consultation has received a new meaning that prioritizes consensus without voting. Deliberation is different from consultation as we know it today because the concept puts forward equality in opinion, rational arguments and information disclosure. These three things have not yet existed in our democratic practice.
The next problem: participation is then lowered to the technical level and the law is considered the result of academic work, so inviting many experts with many degrees is considered a success of participation. In fact, experts can discuss knowledge, but cannot discuss experiences, which can vary among stakeholders from one law to another.
As was the case in the discussion of the RKUHP, those who reject participation and openness argued that, if discussed too broadly, the bill would never be completed and would only cause commotion. Such an argument demonstrates an undemocratic and highly technocratic way of thinking. The law is given a target such as broadcasting soap operas. The less time it takes to produce laws and the less noisy the process, the more politics is considered good because it is stable.
The DPR and the government are like factories that need efficiency in production. In fact, democracy cannot be measured by an economic ruler, but by how far ordinary citizens can participate in the life of the state. Do not be afraid of participation. Participation will be a good political channel so that the "commotion" that arises is a crowd of opinions; even this is important in democracy. The most important thing is the fact that laws require political legitimacy. A mere legal-procedural perspective will even gradually undermine democracy.
BIVITRI SUSANTI, Lecturer at the Indonesia Jentera School of Law