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Law without credibility
This is how democracy works in contemporary Indonesia, where the opposition, hence the checks and balances mechanism, is not functioning.
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Against the law: Members of a civil society organization join a large-scale protest against the Job Creation Law in Harmoni, Central Jakarta, on Oct. 8, 2020. The House of Representatives passed the law on Oct. 5 despite public resistance. (JP/Wendra Ajistyatama)
F
or sure, the Constitutional Court’s order on Thursday for the government to amend the controversial Job Creation Law in two years, or else it will be declared unconstitutional, marks a setback for President Joko “Jokowi” Widodo’s administration’s bid to cut red tape and bring in investments that would create jobs. Domestic and overseas investors will consequently put their business plans on hold until the legal uncertainty is settled, if not look for other opportunities elsewhere.
But as the court said in its narrowly split decision – five in favor of the plaintiffs versus four against – the omnibus law was considered flawed because of its legislative procedure that ran counter the Constitution. Last-minute changes were made to the final draft that was endorsed by the House of Representatives, while there were mistakes in the legislation’s citations of nearly 80 existing laws that it removed.
More than that, both the government and lawmakers turned a deaf ear to public voices and concerns critical of the draft bill throughout the deliberation process. Under the pretext of health protocols to contain the spread of COVID-19, crucial parts of the debate were held behind closed doors and rallies to protest the bill were quelled.
The strong message the court is sending is that next time we rush legislation, through bypassing the public consultation, the legislation will end up in the court and we are back to the drawing board. But this is how democracy works in contemporary Indonesia, where the opposition, hence the checks and balances mechanism, is not functioning.
With the ruling coalition controlling more than 80 percent of the House seats, there is a temptation for the government to bulldoze its way through the legislative process as in the case of the jobs law. Thanks to the Constitutional Court, we can hope for the safeguarding of our hard-won democracy.
We should have no qualm the legislation was drafted in good faith. Even before the COVID-19 pandemic, Indonesia performed disappointingly in terms of productivity and competitiveness compared with fellow developing nations thanks in part to our regulatory problems. The Organisation for Economic Cooperation and Development (OECD), for example, classified Indonesia among one of the most restrictive countries to foreign direct investment because of its many man-made barriers.
The omnibus law was envisioned as a panacea, but goals cannot simply justify the means. It is therefore heartening that the government has accepted the court’s decision and will soon begin amending the law. This may show respect for the rule of law on the government’s part, but it is not enough.
Not only does the government have to stop issuing implementing regulations of the jobs law, but it has to make sure the revision of the law follows the proper mechanism, which includes adequate consultation with the public given the overarching impacts of the law on them and the environment.
The recent judicial review is not the first challenge to the legitimacy of the Job Creation Law, as there are other petitions against the omnibus law with the Constitutional Court. While this may undermine business and legal certainty, we have learned why good law-making procedures must stand.
