Legal Politics of Lawmaking Law Results in Constitutional Violation

The judicial review hearing of the Lawmaking Law to hear experts for the Petitioners, Thursday (11/17/2022). Photo by MKRI/Ilham W. M.

Thursday, November 17, 2022 | 20:29 WIB

JAKARTA (MKRI) — The legal politics of Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking (P3 Law) was not aimed at creating better legislation, but to implement the Constitutional Court Decision No. 91/PUU-XVIII/2020 as soon as possible so that the Job Creation Law can be enacted immediately with the legal and development paradigms, said constitutional law expert Bivitri Susanti at the judicial review hearing for case No. 82/PUU-XX/2022 on Thursday, November 17, 2022.

“Due to the rush to implement the Job Creation Law, there have been at least two constitutional violations,” she explained before Chief Justice and the other constitutional justices.

The lecturer of Jentera School of Law then described the two violations. First, the president’s assignment to the Coordinating Ministry for Economic Affairs who coordinated the discussions of the Law with the House of Representatives (DPR). She said this move was unconstitutional because it was not within the president’s jurisdiction.

“Secondly, participation was merely for data fulfillment. I observed this from three things. First, there was no participation by affected community groups; only by experts and it was only through ordinary seminars. The method also did not provide room for meaningful participation. There was also no [public] participation at the discussion stage; everything was done at the drafting stage,” she said.

Bivitri also asserted that a formal review on the legislative process of a law is not only based on the textual procedure, but also the legal political context. Therefore, the drafting of the Lawmaking Law would seem ordinary as only the text of the formation process was examined, but the unconstitutionality of the Law would be visible upon closer examination. This is evident in the absence of participation by community groups affected by the formation and implementation of the Law. Their participation cannot be replaced by literature and/or the participation of experts at the discussion stage.

Also read:

Petitioners Argue Revised Lawmaking Law Ineligible 

Petitioners of Lawmaking Law Submit Observation Results 

One-Way Communication

Meanwhile, constitutional law expert of Brawijaya University Aan Eko Widiarto talked about community participation based on three main pillars: the right to have one’s opinion heard, to have one’s opinion considered, and to be given an answer or explanation for one’s opinion. Public participation by affected community groups who have special attention to a bill, he said, should at least be done when the bill was proposed, discussed with the Regional Representatives Council (DPD), and approved by the House and the president. Therefore, he concluded, the main legal framework on which the constitutionality of a lawmaking process that has meaningful public participation is reviewed should be the prerequisite and the objective/output stages.

“We can see from the existing stages, the indicators of public opinion and the right to get an explanation were not fulfilled or presented by the House. [I] said ‘not presented’ because there are two possibilities: there was data but it was not presented, or there was no data to present. Possibly, there was not fact, since the communication was one-way, the drafting and discussion meetings were only broadcasted on a YouTube Channel, they were not interactive. As a result, the public could only watch and unable to have their opinion heard or be considered. The right to get an explanation or answer to their opinion was not respected, since the communication was also one-way only,” he explained.

Also read:

Govt Asserts Lawmaking Bill in Prolegnas Priority List 2022 

Formation of Lawmaking Law Following 1945 Constitution 

The petition No. 82/PUU-XX/2022 was filed by five Petitioners: lecturers Islamil Hasani and Laurensius Arliman, university student Bayu Satria Utomo, the Congress of Indonesian Unions Alliance (KASBI), and the Indonesian Legal Aid Foundation (YLBHI).

At the preliminary hearing on Monday, September 5, 2022, the Petitioners asserted that the second amendment to the Lawmaking Law had not met the requirements for an open cumulative bill since it was not the follow-up on the Constitutional Court Decision No. 91/PUU-XVIII/2020, which did not assert that the Lawmaking Law was unconstitutional. The Government and the House of Representatives (DPR) should have amended the problematic Job Creation Law, especially Article 64 paragraph (1) letter b, Article 72 paragraph (1) letter a, Article 73 paragraph (1), and Article 96 paragraph (3).

The Petitioners also argued that the discussion of the Lawmaking Law had disregarded the public and was hasty. Flow of information relating to the Law only occurred one-way from lawmakers to the public through news articles, pamphlets, posters, and other simple means of communication. There was no room for feedback from the public, thus the public did not have any power to negotiate.

The Petitioners believed that the Lawmaking Law was the House’s initiative at the House plenary meeting on February 8, 2022 and was ratified on May 24, 2022. The discussion only took place from April 7 to May 24, 2022. The Petitioners also asserted that the Law had violated lawmaking principles, as it disregarded clarity of purpose, institutional value, implementation value, usability and effectiveness, clarity of formulation, and transparency.

Writer        : Sri Pujianti/LA
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/19/2022 12:18 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, November 17, 2022 | 20:29 WIB 300