Violation in Formation of Lawmaking Law

Another formal judicial review hearing of Law No. 13 of 2022 on Lawmaking, Thursday (9/15/2022). Photo by MKRI/Ifa.

Thursday, September 15, 2022 | 14:17 WIB

JAKARTA (MKRI)—In Indonesia, laws are created with complex problems, especially when the relation between voters and members of the House of Representatives (DPR) is severed after the general election. Voters do not have control over the legislators. This potential result in the laws ending up being far from their expectations. Therefore, principles of lawmaking and the material content are necessary, said Feri Amsari as an expert for the Labor Party when testifying at the sixth formal judicial review hearing of Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on the Formation of Legislation (Lawmaking/P3 Law) for case No. 69/PUU-XX/2022 in the Constitutional Court (MK) on Thursday, September 15, 2022.

He then explained that lawmaking principles and procedure must be carried out through five stages: planning, drafting, discussing, ratifying/stipulating, and enacting. The procedure, especially the involvement of the president, is regulated in Article 20 of the 1945 Constitution. Meanwhile, constitutional delegation regarding lawmaking procedure is further regulated in Article 22A. Therefore, there is no reason to refute the notion that every law formed in accordance with the Lawmaking Law is constitutional, until the Constitutional Court can prove otherwise through a decision. Even though laws are based on the Lawmaking Law, it does not mean that legislators do not violate values enshrined in the Constitution.

Only One Principle Implemented

Feri said that following Article 5 of Law No. 13 of 2022 on Lawmaking, there are seven lawmaking principles: clarity of purpose; the appropriate forming institution or official; fit between types, hierarchy, and content; implementation value; usability and effectiveness; clarity of formulation; and transparency.

“Out of those seven lawmaking principles, the formation of Law No. 13 of 2022 has violated at least six and followed only one, which is the appropriate forming institution or official,” said the constitutional law lecturer and director of the Center for Constitutional Studies of Andalas University (PUSaKO Unand) virtually.

Dualism of Transparency

Feri said that the transparency of the amendment to the Lawmaking Law was different on paper and in practice. There is no issue regarding the elucidation to Article 5 of Law No. 12 of 2011 and that to Law No. 13 of 2022, he said. However, the legislators did not practice the principle of transparency dictated by those two norms. Public participation was even restricted, he added. Thus, what the Constitutional Court aspired to in its decision was not implemented.

“Legislators often talk about transparency in every stage [of lawmaking], although the Constitutional Court in its decision saw that only three stages are necessary. However, transparency that the public wants and the Court mandated was more of a slogan [for legislators] than actual access to public participation. The participation is only ceremonial. If it is proven that the six lawmaking principles were not implemented or not implemented well, Law No. 13 of 2022 is indeed formally flawed,” Feri explained.

The plenary hearing was presided over by Chief Justice Anwar Usman and the other eight constitutional justices. Before concluding the session, Justice Anwar informed that the hearing would commence on Thursday, September 22 at 11:00 WIB to hear two experts and two witnesses for the president/Government. He urged those experts to submit the CVs and written testimony no later than two days prior to the hearing. 

Also read:

Lawmaking Law Challenged by Labor Party for Alleged Potential to Revive Job Creation Law 

Labor Party Focuses on Formal Petition Against Lawmaking Law 

Petitioners’ Signatures’ Authenticity Checked in Formal Case Against Lawmaking Law

Govt Responds to Labor Party’s Allegations on Lawmaking Law 

Supriansa: Formation of Lawmaking Law Met Openness Principle 

The case No. 69/PUU-XX/2022 was filed by the Labor Party, represented by president Said Iqbal and secretary-general Ferri Nurzali, as well as Ramidi, Riden Hatam Aziz, R. Abdullah, Agus Ruli Ardiansyah, Ilhamsyah, Sunandar, Didi Suprijadi, and Hendrik Hutagalung. At the preliminary hearing on Thursday, July 14, Said Iqbal argued that the enactment of the Lawmaking Law could ‘revive’ Law No. 11 of 2020 on Job Creation, which Court had declared formally defective. Therefore, they felt the need to ensure the Lawmaking Law, which would be used as an entryway to discussing the Job Creation Law, be declared invalid by the Constitutional Court.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/19/2022 19:32 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Thursday, September 15, 2022 | 14:17 WIB 30