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Reviving omnibus law: Legal option for better coherence
President Joko “Jokowi” Widodo unveiled in his inaugural speech a “new” kind of initiative to form omnibus laws
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President Joko “Jokowi” Widodo unveiled in his inaugural speech a “new” kind of initiative to form omnibus laws. The Oxford Dictionary of English defines “omnibus” as “a volume containing several books previously published separately”, among other definitions.
In the latest Black’s Law Dictionary 10th Edition the term “omnibus bill” is, among other ways, defined as follows, “(1) A single bill containing various distinct matters, usually drafted […] to force the executive either to accept all the unrelated minor provisions or veto the major provision; and (2) A bill that deals with all proposals relating to a particular subject, such as […] an ‘omnibus crime bill’ dealing with different subjects such as new crimes and grants to states for crime control.”
The Jakarta Post report titled “Omnibus bill to synchronize overlapping regulations” (Nov. 18), indicates that the omnibus bill will be directed toward synchronizing about 70 overlapping laws and regulations, in line with the first and second definitions of Black’s Law Dictionary.
In the legal history of the nation later called Indonesia, there was nothing new about omnibus law. In about 130 years from 1819 to 1949, the Dutch colonial government enforced about 7,000 laws in the Dutch East Indies.
Indonesia’s laws have gone through at least five periods of enforcement: (1) Pre-liberalism period (1819-1840), (2) Liberalism period (1840-1890), (3) Ethical Policy period (1890-1940), (4) Decolonization and New Order period (1940-1998) and (5) Reform and post-reform period (1998-present).
A study by the National Agency for Legal Development (BPHN) at the Law and Human Rights Ministry in 1992 found that in 1995 about 400 regulations from the colonial era remained in force. Today, the number has declined to less than 400 as a result of the national legal development and reform undertaken in the post-1949 period.
Legal reform took shape in the revocation of old laws and establishment of new ones or the enforcement of new laws replacing several old ones. Creation of omnibus laws helped independent Indonesia reduce 7,000 laws left over by the Dutch to about 400.
From the perspective of constitutional law, Indonesia has enforced at least three omnibus laws. First is People’s Consultative Assembly Decree No. V/1973 on the review of decrees of the Provisional People’s Consultative Assembly (MPRS), issued on March 22, 1973.
The Assembly decree served as a kind of omnibus law reviewing the various MPRS decrees enforced since 1960, which were grouped into: (1) those to be revoked; (2) those stipulated in the State Policy Guidelines (GBHN); (3) those still effective and requiring improvements; (4) those already implemented due to their final nature of validity; and (5) those not yet accommodated and not opposed to the GBHN.
The Assembly decree is considered a form of omnibus law as it was passed to “ascertain the legal status of the various decrees for the comprehension and practice of democratic and constitutional life […] based on the Pancasila ideology and the Constitution of 1945”.
Second is Assembly Decree No. I/2003 on the review of decrees of the MPRS and the Assembly from 1960 through 2002. Along with the team from the Center for Constitutional Law Studies, Faculty of Law, University of Indonesia, I was requested by the Assembly to draft this decree.
The omnibus law was formed on the basis of the following considerations: (1) the four amendments to the 1945 Constitution have changed Indonesia’s public institutions, (2) the structural changes of the public institutions have changed the positions, functions, duties and authorities of these institutions and that of government agencies and (3) the changes have affected the regulations enforced pursuant to the Constitution and made it necessary to review the decrees of the MPRS and the Assembly.
A review was made of the 139 decrees of the MPRS and the Assembly from 1960 through 2002.
As a result the new 2003 Assembly decree grouped the 139 decrees into several categories: (1) those revoked and declared invalid, (2) those declared valid on certain conditions, (3) those remaining valid until the establishment of the government resulting from the 2004 general elections, (4) those remaining valid until the formulation of the relevant law, (5) those declared valid until the formulation of the new internal rule by the Assembly resulting from the 2004 general elections and (6) those needing no further legal review.
Third is Law No. 7/2017 on General Elections. This is an example of the omnibus law conforming to the second meaning described by Black’s Law Dictionary. The 2017 law unifies several laws on general elections: (1) Law No. 42/ 2008 on general elections of the President and Vice President, (2) Law No. 15/2011 on the election organizer, (3) Law No. 8/2012 on elections of members of the House of Representatives, the Regional Representative Council and Regional Legislative Councils. The unification of the three election laws into one served as the legal basis for the simultaneous general elections in 2019.
Therefore as an initiative, omnibus law is not new in Indonesia. Public protests against a number of laws and bills, especially those that sparked demonstrations last September and prompted the President to ask for the delay of their passage, have made formation of omnibus laws now relevant. By forming an omnibus law, old laws that only cause uncertainty can be transformed into one new, coherent piece of legislation.
To speed up discussions of the omnibus law of the Employment Creation Bill, the Indonesian Chamber of Commerce and Industry (Kadin) will set up an Omnibus Law Task Force, to be headed by Kadin chairman Rosan Perkasa Roeslani. The team will review various bills and laws that can be removed and advise the government about the formulation and application of future omnibus laws.
The taskforce will deal with 11 issues related to land licensing, investment requirements, manpower, facilities and protection for medium and small enterprises, business facilities, research and innovation support, public administration, sanction imposition, land control, government project facilities and exclusive economic zones.
Omnibus laws will be an important legal choice in the future. This is even more the case if it leads to the simplification or removal of laws, to facilitate efforts to bring justice and prosperity to all.
