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Jakarta Post

Omnibus law and erosion of checks and balances

  • Bagus Aditya


Jakarta   /   Sat, October 17, 2020   /   08:44 am
Omnibus law and erosion of checks and balances Force to be reckoned with: Police officers use their shields to form a riot line during a protest organized by the Tangerang Workers Alliance on Jl. Daan Mogot in Tangerang, Banten, on Oct. 7. Protests have flared up nationwide after the House of Representatives passed the Job Creation Law on Oct. 5. (JP/Dhoni Setiawan )

Adopting a presidential system of government based on a written constitution, Indonesia has three key branches of power: the legislature, executive and judiciary. The first is held by the House of Representatives, and to some extent the Regional Representative Council (DPD), the executive institution is centralized under the president and the judiciary branch consists of the Supreme Court and Constitutional Court.

The legislature oversees the direction of the government, budget formulation and implementation, and, along with the executive, drafts laws. The executive makes laws with the legislature and administers such laws and programs. The judiciary decides specific cases of law implementation and reviews laws. These branches work together to run the country properly.

What might be the necessary and permissible relationships of each of these bodies to the policymaking in Indonesia? The Constitution stipulates a checks and balances mechanism to ensure that no one branch would ever become too powerful and the branches of power would always be able to check the power of one another.

The House, by design, acts more slowly. It can act only after legislation has been publicly proposed. During the often lengthy period of debating, interested groups can and do voice their views. This process gives the public a window into the decisionmaking process. It promotes the Indonesian deliberative democracy the people want to precede government policymaking.

In our House now, the combination of declining policy expertise among members and increasing political polarization has reduced the ability of legislators to supervise the president even if they have the desire to do so. There is declining confidence in constitutional checks and balances, as President Joko “Jokowi” Widodo appears to have a strong grip on his coalition of parties-dominated legislature. We cannot count the legislature as a check anymore.

What was happening in the House on Oct.5 when it passed the omnibus Job Creation Law that delegates important implementing regulations to the president and the Cabinet suggests a shift in the center of gravity of lawmaking. The government announced it would issue at least 39 implementing regulations during the first three months after the law comes into effect. However, many experts consider that the omnibus law will require around 500 implementing regulations in many forms, including government regulation. If this counting is correct, these kinds of regulations will become one of the most powerful tools a president has for setting policy.

It was originally thought that the executive would merely work out the technical details of broad policies established in the House. This power is needed so the presidents can fill gaps or ambiguities in laws the House passes. However, the vastness of the delegations in the Job Creation Law may create a concentration of powers to the president. For example, the regulation about contractual workers is impossible to be implemented without government regulation because the law does not stipulate in detail the maximum period, nature of the jobs nor the type of activities. The president could unilaterally set any period without contravening the law, which says nothing about the maximum period.

What is the problem with the president making policy? In Indonesian democracy, people directly elect the president after all. Placing lawmaking authority in the president’s hands, however, deprives lawmaking of much of its participatory character.

Often, presidential policymaking does not involve the public, and lacks transparency. We do not know who the president meets with or speaks to in formulating a policy. In the case of the Job Creation Law President Jokowi and his ministers cannot hear from everyone who may be affected by the law in only a 90-day period. So, he does not have the opportunity to carefully draft his policy in response to their suggestions and concerns. In reality, implementing regulations are not always matched or aligned with the law.

The only strength gained by unilateral executive lawmaking is raw speed: policies can be implemented more swiftly by unilateral presidential action than by legislative deliberation and debate. But the dangers are many and such dispatch comes at a high constitutional cost. Unrestrained by the procedural complications, the president can rather easily implement regulatory policy in the form of government regulations, decrees or his minister’s regulations.

With the legislature out of the way, the courts are the only remaining check against an overreaching president. So far, civil society organizations are stepping in and will file a judicial review motion with the Constitutional Court against the law and the Supreme Court against implementing regulations.

But this is not the best way to run a country. Litigations are expensive and obviously a burden on the non-profit sector. This is also not an easy task for the government. A rapid response from their legal department is limited due to its small size.

Whatever side of the aisle you are on, the precedent President Jokowi is setting is dangerous. The lack of transparency and democratic accountability in policymaking constitutes exactly the kinds of danger the Constitution — following the amendment in 1999-2002— was designed to avoid. The next president could initiate a new round of unilateral lawmaking, satisfying his/her own political base or sponsors.

We want a strong and effective president, but we want it checked.

Disclaimer: The opinions expressed in this article are those of the author and do not reflect the official stance of The Jakarta Post.