View of FUNDAMENTAL PRINCIPLES OF THE LEGISLATION PROCESS

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PETITA: Jurnal Kajian Ilmu Hukum dan Syariah Volume 6, Number 1, 2021

P-ISSN: 2502-8006 E-ISSN: 2549-8274 DOI: https://doi.org/10.22373/petita.v6i1.109

FUNDAMENTAL PRINCIPLES OF THE LEGISLATION PROCESS:

COMPARATIVE STUDY BETWEEN INDONESIA AND THE UNITED KINGDOM

YASSAR AULIA

Universitas Padjadjaran, Bandung, Indonesia Email: [email protected]

ALI ABDURAHMAN

MEI SUSANTO

Abstract: The Indonesian legislative process in recent years has been facing various serious procedural flaws. Most notably illustrated by at least three contemporary cases, namely regarding the process of the second amendment to Law No. 30 of 2002 concerning the Corruption Eradication Commission (hereinafter referred to as the KPK Law); the third amendment to Law No. 24 of 2003 concerning the Constitutional Court (MK Law); and the formation of Law No. 11 of 2020 concerning Job Creation (Job Creation Law). The purpose of this paper is to see whether in practice, the legislative process in Indonesia has aligned itself with the fundamental principles of the legislative process and to see whether the legal framework regarding procedures during the law-making process are adequate. Through descriptive analytical research and comparative approach with the United Kingdom, this paper found that the Indonesian law-making process in practice is not in line with the fundamental principles of the legislative process. We also found that the legal framework regarding the procedure for making laws in Indonesia to be inadequate and therefore we suggest that it can draw some lessons from the practices of the British Parliament.

Keywords: Comparative Law, Fast-Track Legislation, Legislative Process, Omnibus Law, Procedural Principles

Abstrak: Pembentukan undang-undang (UU) di Indonesia dalam beberapa tahun terakhir memiliki berbagai kecacatan prosedural yang serius. Kekacauan proses legislasi di Indonesia paling terang terilustrasikan jika melihat setidaknya tiga kasus kontemporer, yakni mengenai proses pembentukan UU No. 19 Tahun 2019 tentang Perubahan Kedua atas UU No. 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi (selanjutnya disebut UU KPK), UU No. 7 Tahun 2020 tentang Perubahan Ketiga atas UU No. 24 Tahun 2003 tentang Mahkamah Konstitusi (UU MK), dan UU No. 11 Tahun 2020 tentang Cipta Kerja (UU Cipta Kerja). Tujuan dari tulisan ini adalah untuk melihat apakah dalam praktik, proses pembentukan UU di Indonesia telah menyelaraskan diri dengan prinsip-prinsip fundamental proses pembentukan undang-undang dan melihat apakah pranata hukum prosedural yang berlaku telah memadai. Melalui spesifikasi penelitian deskriptif analitis dan pendekatan perbandingan hukum dengan Britania Raya, hasil

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penelitian menunjukkan bahwa praktik pembentukan undang-undang di Indonesia belum selaras dengan prinsip-prinsip fundamental proses pembentukan undang-undang.

Pranata hukum mengenai prosedur pembentukan UU yang ada di Indonesia juga kami temukan belum memadai dan oleh karenanya dapat mengambil beberapa pelajaran dari praktik Parlemen Britania Raya.

Kata Kunci: Fast-Track Legislation, Omnibus Law, Pembentukan Undang-Undang, Perbandingan Hukum, Prinsip Prosedural

Introduction

The Indonesian legislative process in recent years has been facing various serious procedural flaws. This is most notably illustrated by three contemporary cases, namely regarding the second amendment to the KPK Law; the third amendment to the MK Law;

and the formation of the Job Creation Law. During its drafting and deliberation process, these three acts were faced with massive rejection from the public at large.¹ Generally, the objections raised were based on: the unprecedented hasty deliberation and passage of the three acts; that the deliberation process was conducted in a closed and secretive manner that does not involve the public or relevant stakeholders; and the fact that the current Indonesian laws don’t officially acknowledge nor accommodate the existence of omnibus method for legislating and accelerating a bill discussion process through a fast- track mechanism—in which the Job Creation Law used the former method and KPK Law alongside MK Law used the latter.²

The problems above are not necessarily caused by the lack of relevant laws regarding law- making procedures, seeing that, like many modern democracies, Indonesia does regulate how the legislative process should ideally be carried out. At least five laws and regulations that we found that serve as guidelines for legislators and legislatures regarding how an act should be made. Firstly, Law No. 12 of 2011 on the Formation of Laws and Regulations (P3 Law), as has been partially amended through Law No. 15 of 2019 (P3 Law Amendment).

Second, Law No. 17 of 2014, with its current amendment, Law No. 13 of 2019 on the People’s Consultative Assembly, House of Representatives, Regional Representative Council, and the People’s Regional Representative Assembly (MD3 Law). Third, through the House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct (DPR’sCode of Conduct). Fourth, Regional Representative Council’s Regulation No. 2 of 2019 on Code of Conduct (DPD’s Code of Conduct). And lastly, Presidential Regulation No. 87 of 2014 on Implementation Regulation of Law No. 12 of 2011 on the Formation of Laws and Regulations (Presidential Regulation No. 87/2014).

From the problems above, a question arises: “does and to what extent the process of law- making in Indonesia has aligned itself with existing procedural norms as well as with the principles and theories related to the legislative process?”. Furthermore, it is also

1 ‘CNN Indonesia, “Alergi Demonstrasi Di Rezim Jokowi”, Https://Www.Cnnindonesia.Com/

Nasional/20191029074126-20-443690/Alergi-Demonstrasi-Di-Rezim-Jokowi Accessed 05 July 2021; Dan Sasmito Madrim, “Buruh, Mahasiswa Tolak RUU Ketenagakerjaan Dan UU KPK”, Http’; See also, Jamie S. Davidson, Indonesia: Twenty Years of Democracy, Cambridge University Press, 2018.

2 See Lulu Anjarsari, ‘Ketika Konstitusionalitas Revisi UU KPK Dipertanyakan, Majalah Konstitusi’

[2020] Majalah Konstitusi; ‘Tim Lindsey et.Al., “Indonesia’s Omnibus Bill: Typo or ‘Mistaken Instruction’?”, Https://Indonesiaatmelbourne.Unimelb.Edu.Au/Indonesias-Omnibus-Bill-Typo- or-Mistaken-Instruction/ Accessed 05 July 2021’; ‘M. Nur Sholikin, “Explainer: Jokowi’s Omnibus Bills, and Why Critics Want to Put on the Brakes”, Https://Indonesiaatmelbourne.Unimelb.Edu.Au/

Explainer-Jokowis-Omnibus-Bills-and-Why-Critics-Want-to-Put-on-the-Brakes/ Accessed 05 July 2021’.; ‘Ega Ramadayanti and Ramos Adi Perisai, “Revisi Undang-Undang Mahkamah Konstitusi:

Praktik Barter Politik Yang Nihil Substantif?”, Https://Fh.Unpad.Ac.Id/Revisi-Undang-Undang- Mahkamah-Konstitusi-Praktik-Barter-Politik-Yang-Nihil-Substantif/ Accessed 05 Jul’.

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interesting to question whether the existing legal provisions in Indonesia are adequate in their substance to actualize the ideal legislative process. In this regard, we view that it is relevant to see and seek lessons on how the legislative process is carried out in the United Kingdom. Seeing that this country’s parliament has a considerable influence as one of the oldest legislatures in the world and its quality in carrying out the legislative process.³ Fundamental Principles of the Legislation Process: A Brief Overview

As suggested by the findings of Ittai Bar-Siman-Tov, it is supported that “… a flawed legislative process results in ‘poor laws and flawed policy’ …”.⁴ In general, this article will try to apply the “fundamental principles of the legislation process,” as first referred to by Judge Dorit Beinisch in Israel Poultry Farmers Association v. The Government of Israel.⁵ These principles were used by the Israeli Supreme Court to test whether the legislative due process has been fulfilled by the Knesset (Israel’s legislative body) when creating an act.⁶ We view that these principles can be used as a framework to test the legislative process done in the DPR.

The principles itself consisted of:⁷ the principle of participation, the principle of formal equality, the principle of majority rule/decision, and the principle of publicity. In Beinisch’s view, if one or all of these principles is infringed upon, it may constitute “a flaw in the very root of the process.”⁸ The implementation of the principles mentioned earlier will be tested in the second amendment to the KPK Law, the third amendment to the MK Law, and the formulation of the Job Creation Law. The examination of the participation principle will borrow Sherry Arnstein’s “Ladder of Citizen Participation,” which stratifies forms of public participation regarding creating public policies in eight levels.⁹ The lowest is classified as a form of “nonparticipation” and the highest being “citizen control.”¹⁰

Conformity of the Indonesian Legislative Process with the Fundamental Principles of the Legislation Process

Conformity with the Principle of Participation

First, the legislative process of the second amendment to the KPK Law will be highlighted.

During its formulation, public participation is the one thing that is always overlooked in every stage. During its planning stage, the KPK Law was not included in the National Legislative Programme list (Program Legislasi Nasional – Prolegnas). Rather, it was included as part of the Cumulative Open List (Daftar Kumulatif Terbuka). When a bill is included in the list, it will miss the stages usually underwent by bills in general, which are included in Prolegnas. Namely, the bill will miss a series of activities that involve public participation during its planning stage. Even though during the planning stages or when drafting the Prolegnas, the Legislative Committee (Badan Legislasi—Baleg), in order to

3 Popularly known as ‘the mother of parliaments’, the Westminster Parliament has had a major influence on the parliamentary democracy model in particular, as well as on the dynamic development of legislative bodies in the global order in general. See ‘Malcolm Shaw, “The British Parliament in International Perspective”, (2004) 57(4) Parliamentary Affairs 877’; Wim Voermans, Combining Efficiency and Transparency in Legislative Processes (The Theory and Practice of Legislation 2015), 4 281.Ittai Bar-Siman-Tov, ‘The Puzzling Resistance to Judicial Review of the Legislative Process’ (2011) 92

Boston University Law Review 1928.

5 ‘Israel Poultry Farmers Association v. The Government of Israel (2004), HCJ 4885/03, Accessed from Https://Versa.Cardozo.Yu.Edu/Opinions/Israel-Poultry-Farmers-Association-v-Government-Israel, Pp. 409-410.’

6 Suzie Navot, ‘Judicial Review of the Legislative Process’ (2006) 39 Israel Law Review 231.

7 ibid, 218-223.

8 ibid, 191.

9 Popularly known as “Ladder of Citizen Participation.” See Sherry R. Arnstein, ‘A Ladder of Citizen Participation’ (1969) 35 Journal of the American Institute of Planners 217.

10 ibid.

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receive input from the public and relevant stakeholders, ought to circulate the Prolegnas to the public.¹¹ From its preparation stage until after its enactment.

Considering that the amendment to the KPK Law only went through a hasty planning, drafting, deliberation, and enactment process—namely, within a total period of 14 days, it is hard to believe that all of the stages were carried out optimally and in adherence of the procedural norms. Especially in regards to ensuring that public participation was satisfactorily accommodated in its formation. In its official statement to the Constitutional Court (the Court), the DPR claimed that during the entire process, KPK itself as an institution and relevant stakeholders was highly involved.¹² This spokesperson for the DPR did not elaborate further, but he said that on the day when the KPK bill was about to be passed in the Baleg, there was a request from the then KPK board of directors to meet with the Minister of Law and Human Rights, asking to be involved in the discussion of the bill.¹³ However, this request could not be fulfilled due to the Minister had to attend the deliberation on the said bill during the same time.¹⁴ According to the DPR, this “incident”

resulted in the perception that the KPK was not involved.¹⁵ Moreover, it was also stated that right before the bill was about to be approved, the DPR claimed to have provided space for parties who still objected the bill, means to submit their objections in front of the House.¹⁶ However, the DPR argued that there were no such objections submitted, especially by the KPK board of directors.¹⁷

The claims above cannot be justified and are utterly inconsistent with the facts. First, almost all meetings held when deliberating the KPK bill that should have allowed for public involvement were held behind closed doors and were entirely restricted from the public. As can be seen from the official reports published on the DPR website.¹⁸

Secondly, the DPR’s claim saying that there has been given space to raise objections in the final stages of the bill cannot be appropriately categorized as a form of participation. At the very least, such practice was more adequately termed a quasi-participation or a mere formalistic one. On this matter, Sherry Arnstein reminded that there is a crucial difference between going through the empty ritual of participation and giving the participant real power needed to affect the outcome of the process.¹⁹

Referring to Arnstein’s theory, the above “involvement” of the public during the second amendment to KPK Law falls under the classification of tokenism. Specifically, categorized in the form of informing. According to Arnstein, one of the characteristics of informing is holding meetings that are a one-way communication facility where superficial information is given and usually held during the final phases of the planning stage. Under these conditions, people have little opportunity to influence the proposed programs.²⁰

Additionally, it can be said that most of the interested party in the amendment of this Law is

11 Article 122, House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

12 See the Indonesian Constitutional Court, ‘Risalah Sidang Mahkamah Konstitusi Perkara No.

62,70,71,73,77,79/PUU-XVII/2019 Perihal Pengujian Formil dan Materiil Undang-Undang Nomor 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi terhadap Undang.

13 ibid.

14 ibid.

15 ibid.

16 ibid.

17 ibid.

18 DPR RI, Program Legislasi Nasional – RUU tentang Perubahan Kedua atas Undang-Undang Nomor 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi 2002., https://www.dpr.go.id/

uu/detail/id/88 accessed 05 July 2021.

19 Sherry R. Arnstein (n 9).

20 ibid, 219.

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the KPK itself. However, KPK has never been involved during the planning and deliberation of the second amendment to the KPK Law.²¹ What’s more, the KPK Commissioner did not even know the bill’s content when the legislators were deliberating it.²² Even though the KPK Commissioners were actively pressuring the DPR to be included in the deliberations.

Switching to the third amendment to the MK Law. It isn’t easy to ascertain what happened during the deliberation process of this bill in the DPR, considering that there were not enough publications such as proceeding transcripts that could be obtained from the DPR official website. The third amendment to the MK Law broke the record as the fastest act to be deliberated and enacted (seven days total).²³ No single method of public participation that is used during its drafting process. Such was accommodated by Article 96(1) of P3 Law, which includes public hearings, work visits, socialization, seminars, workshops, and public discussions.

The current presiding Constitutional Court judges did not even know that there was a draft bill prepared by the DPR and was not involved in giving their considerations when the bill entered the deliberation stage.²⁴ However, based on an interview that we conducted with one of the claimants of the constitutional review case for the MK Law, they mentioned that to some extent, the Court as a relevant stakeholder to the amendment, was involved during the drafting process.²⁵ During several meetings, such as at the approval meeting to further deliberate on the bill’s contents held by the DPR and the Government, the Secretary-General of the Court and several Constitutional Court researchers were invited to be involved.²⁶ However, based on the information given by these parties to the claimant, they were only told to be present and were not given a chance to provide much input.²⁷ If this information is accurate, according to Arnstein, this activity falls into the category of tokenism on the “participation ladder.” Specifically the informing category. Information is given from one direction and carried out in the last phases of the planning stage without providing a means for the participants to provide inputs or means for negotiation.²⁸ Lastly, turning the discussion towards the formulation of the Job Creation Law. At least as reported on the DPR’s official website, the deliberation process of this law held various meetings to involve and ask for consideration several experts, interest groups, and stakeholders. Nonetheless, on closer inspection, we consider that the public involvement that has been carried out has not been done so fairly. For example, during the deliberation on the “employment” section of the bill, the involvement of labor workers through trade unions and labor unions was not carried out as intensively as the involvement of capital

21 Interview with Violla Reininda, S.H., an Attorney in the Constitutional Review Case No. 79/PUU- XVII/2019 at the Constitutional Court (Jakarta, 22 April 2021). Among the Petitioners of the Case, Several KPK Board of Directors from the 2015-2019 Period.

22 ibid.

23 Koalisi Selamatkan Mahkamah Konstitusi, ‘Perbaikan Permohonan Pengujian Formil Dan Materiil Atas Undang-Undang Nomor 7 Tahun 2020 Tentang Perubahan Ketiga Undang-Undang Nomor 24 Tahun 2003 Tentang Mahkamah Konstitusi’ (Mahkamah Konstitusi Republik Indonesia, 2020) 41

<https://www.mkri.id/public/filesimpp/berkasReg_3197_Perbaikan Permohonan Perkara Nomor 100 PUU XVIII 2020.pdf> accessed 5 July 2021.

24 See for example Fitria Chusna Farisa, ‘Hakim Konstitusi: MK Belum Diajak DPR Bahas Rencana Revisi UU MK’ Nasional Kompas (Jakarta, 2020) <https://nasional.kompas.com/read/2020/06/24/21100621/

hakim-konstitusi-mk-belum-diajak-dpr-bahas-rencana-revisi-uu-mk?page=all >, accessed 05 July 2021.

25 ‘Interview with Violla Reininda, S.H., an Attorney in the Constitutional Review Case No. 79/PUU- XVII/2019 at the Constitutional Court (Jakarta, 22 April 2021). Among the Petitioners of the Case, Several KPK Board of Directors from the 2015-2019 Period.’ (n 21).

26 ibid.

27 ibid.

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owners such as entrepreneurs and investors. The involvement that indeed happens to include labor could not be categorized as legitimate participation.

In one of the constitutional review petitions filed by the Indonesian Trade Union Confederation (Konfederasi Serikat Buruh Seluruh Indonesia – KSBSI), they based their petition for a formal review on several legal reasons.²⁹ First, the Joint Task Force of the Government and Chamber of Commerce and Industry established by the Government to accommodate public consultation during the deliberation of the Job Creation bill has a composition of one hundred and thirty-seven people, and none of them represents labor or any labor unions. The petitioners also reasoned that when the Government invited various leaders of the labor unions, the Government only explained the significant issues that would be included in the Job Creation Law, thus not discussing the articles of the bill itself. In the same meeting, the petitioners stated that the draft bill was not given to them even though it was requested during every meeting.

Another reason given by the petitioners, they stated that when the Government finally formed a Tripartite Team consisting of members from the Government, employers, and labor unions to discuss the substance of the bill, this was only realized after various pressures from the labor unions. The petitioners also problematize the deliberation conducted through the Tripartite Team. The ten-day deliberation held at the Royal Kuningan Hotel, Central Jakarta, was not held as a decision-making forum. In one of the discussion regarding Article 59 of the Manpower Law in the Job Creation bill, the published article did not contain what was previously agreed upon by the Tripartite Team.

The public participation during the formulation of the Job Creation Law falls into the category of manipulation as conceptualized in Arnstein’s theory. This can be surmised from the fact that the trade unions involved by the Government don’t represent the whole view of the Indonesian trade unions, and as such, the articles in the bill don’t reflect the agreed-upon contents. Also, several contents in the later version of the bill were not previously discussed with the Tripartite Team. In this regard, Arnstein stated that through manipulation, the act of participation is used to manipulate support, and authentic public participation is distorted to become a means for public relations vehicle by the powerholders.³⁰

Conformity with the Principle of Formal Equality

To test the application of this principle, we will highlight specifically the aspect of “relative equality” which is also attached to the principle of formal equality. Its implementation can be seen through the actualization of the right for legislators to participate equally and how their votes are considered for majority rule purposes.³¹

During the second amendment to the KPK Law, this law did not get a unanimous agreement.

There were rejections from several factions, including PKS, Gerindra, and Demokrat. Before the bill is passed, the Head of Baleg first reads the report on the deliberation process that was done in Baleg where it was stated that after intensive meetings with the Government, seven factions expressed their views that accepted the second amendment to the KPK Law

29 See Lembaga Bantuan Hukum Konfederasi Serikat Buruh Seluruh Indonesia, ‘Perbaikan Permohonan Pengujian Formil Dan Materil UU Cipta Kerja Terhadap UUD 1945 Oleh KSBSI Perkara Nomor 103/

PUU-XVII/2020, Tanggal 12 November 2020’, 6-10’ (Mahkamah Konstitusi Republik Indonesia, 2020) <https://www.mkri.id/public/filesimpp/berkasReg_3200_Perbaikan Permohonan Perkara Nomor 103 PUU XVIII 2020.pdf > accessed 5 July 2021. https://www.mkri.id/public/filesimpp/

berkasReg_3200_Perbaikan%20Permohonan%20Perkara%20Nomor%20103%20PUU%20 XVIII%202020.pdf.

31 ibid, 222-223.

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without any notes, while two factions had not been able to accept or approve the bill.³² The Demokrat faction has a similar stance with PKS and Gerindra, but when the report was read out, it had not yet given its view due to waiting for consultations with their faction leader.³³ This practice violates the principle of formal equality because the decision at the plenary session has been taken without previously considering the input from the Demokrat faction, which has not provided notes on the bill that will be passed.

During the Job Creation bill’s plenary session, there were also dynamics of rejections from several factions. On Monday, October 5^th, 2020—two days after the bill’s passage on its first stage on Saturday, October 3^rd, nine factions in the DPR expressed their views regarding the bill again. Of the nine factions, two factions still held a stance to reject the overall results of the deliberation process of the Job Creation bill, namely PKS and Demokrat party faction. Their stance was previously conveyed during Baleg’s work meeting (rapat kerja Baleg) on October 3^rd.³⁴ In the end, the bill was passed due to the majority in DPR had already agreed to the bill.³⁵

At the plenary session, after the DPR Deliberative Body (Badan Musyawarah—Bamus) reads out the agreement decision on the bill, the meeting chair offered the Coordinating Minister for Economic Affairs to present his final views before the Job Creation Bill is passed into law.³⁶ The same offer was also given to the whole factions to express their views after the Minister’s presentation.³⁷ One of the Demokrat Party faction members responded to this offer by requesting that the factions (especially those who rejected the bill) convey their views before the Minister.³⁸ Although it was not immediately agreed upon by the meeting chair, each faction was then allowed to express their views on the bill for five minutes.³⁹ After all the factions had their turn, some Demokrat Party members, interrupted several more times and conveyed their refusal of the bill.⁴⁰ When the meeting chair was about to proceed to the next agenda, one of the members of the Demokrat faction tried to interrupt again but was not given further chances by the chair, which led to a “walk-out” from the Demokrat faction.⁴¹ The session was then ended with the approval by all the parties present and the passage of the Job Creation Bill into law.⁴² Technically, the practice above has fulfilled the principle of formal equality.

Lastly, for the MK Law, there is no dynamic of rejection at the time of decision making because all factions unanimously agreed on the decision to the third amendment to the MK Law at the plenary session. Due to the limitations of available official documents, it can be said that the principle of formal equality has been fulfilled.

Conformity with the Principle of Majority Rule/Decision

The examination of this principle will be limited to the decision-making made during the

32 See Bayu Septianto, ‘Meski Setuju Revisi UU KPK, PKS Dan Gerindra Beri Catatan’ (Tirto Id) <https://

tirto.id/meski-setuju-revisi-uu-kpk-pks-dan-gerindra-beri-catatan-eieW> accessed 5 July 2021.

33 See Riyan Setiawan, ‘Fraksi Demokrat DPR RI Sepakat Revisi UU KPK, Tapi Dengan Catatan’ (Tirto Id)

<https://tirto.id/fraksi-demokrat-dpr-ri-sepakat-revisi-uu-kpk-tapi-dengan-catatan-eiez> accessed 5 July 2021.

34 DPR RI, ‘Laporan Singkat Rapat Kerja Badan Legislasi Dengan Pemerintah Dan DPD RI Dalam Rangka Pengambilan Keputusan Tingkat I Atas RUU Tentang Cipta Kerja’ (2020) <https://www.dpr.go.id/

dokakd/dokumen/BALEG-RJ-20201019-113449-4920.pdf>, accessed 05 July 2021.

35 ibid.

36 Riyan Setiawan (n 33).

37 ibid.

38 ibid.

39 ibid.

40 ibid.

41 ibid.

42 ibid.

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plenary session. Moreover, it will only highlight whether the voting that took place has met the quorum. The principle of majority decision can be manifested inside the requirement that legislative amendments can only be adopted when the proponent of the amendment constitutes a majority of the legislature at any given time.⁴³ This is to ensure that the votes represent the will of the majority.⁴⁴

Moving on to the KPK Law, according to the Secretariat-General of the DPR records, the approval of the second amendment was held on September 17^th, 2019, attended by 289 out of 560 members.⁴⁵ However, the KPK Law Advocacy Team carried out a manual counting whereas of 12.18 WIB, it was recorded that there were only 102 DPR members present at the plenary session. The DPR members who were not physically present in the plenary hall only filled in the attendance form but did not follow the proceedings until the end.⁴⁶ Thus, the decision made at the time of the second amendment to the KPK Law did not represent the principle of majority decision.

Manuel Alonzo Martinez has long emphasized the importance of quorums in decision- making in the legislature by stating that it is not enough for every legislature member to only attend minimally or fill absence forms when it comes to quorums.⁴⁷ Instead, each member must be present in the legislative building for the duration of the session unless authorized to leave the session or unavoidable conditions forcing the member concerned to be absent.⁴⁸ In addition, members must have an obligation to vote on all issues, questions, and decisions that arise during the session.⁴⁹ This has been manifested at least in the DPR’s Code of Conduct. Article 308(1) stipulated that every DPR meeting or session can only decide if it meets the quorum. If the quorum has not been met, the current meeting is postponed for a maximum of two times within a maximum period of 24 hours each, and if after two postponements, the quorum still has not been met, then the DPR leadership should determine another way to resolve the issue.⁵⁰

The Job Creation Law was passed on October 5^th, 2020, at a plenary session attended by 318 of the total 575 DPR members.⁵¹ This means that as many as 257 legislators did not attend. Nevertheless, this is technically still following the principle of majority decision.

Lastly, at the plenary session to pass the third amendment to the MK Law on September 1^st, 2020, the session was attended by 495 members.⁵² Based on the attendance records, 80 members were absent. Thus, when the bill was passed into law, it had fulfilled the principle of majority decision.

43 Suzie Navot (n 6), 218.

44 ibid.

45 See Tim Advokasi Undang-Undang KPK, ‘Perbaikan Permohonan Pengujian Formil Atas Undang- Undang Republik Indonesia Nomor 19 Tahun 2019 Tentang Perubahan Kedua Atas Undang- Undang Nomor 30 Tahun 2002 Tentang Komisi Pemberantasan Tindak Pidana Korupsi (Lembaran Negara Republik Indonesia Tahun 2019’ (2020), 42, https://www.mkri.id/public/filesimpp/

berkasReg_2795_Perbaikan%20Permohonan%20Perkara%20Nomor%2079%20PUU%20XVII%20 2019.pdf accessed 05 July 2021.

46 ibid, 43.

47 Manuel Alonzo Martinez, ‘The Question of the Quorum’ (1892) 154 The North American Review 19.

48 ibid, 20.

49 ibid.

50 Article 316, House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

51 Haris Prabowo, ‘257 Anggota DPR Bolos Saat Pengesahan Omnibus Law’ (Tirto Id, 2020) <https://

tirto.id/257-anggota-dpr-bolos-saat-pengesahan-omnibus-law-f5Be> accessed 5 July 2021.

52 Maya Saputri, ‘DPR Sahkan RUU Mahkamah Konstitusi Jadi Undang-Undang’ (Tirto Id, 2020) <https://

tirto.id/dpr-sahkan-ruu-mahkamah-konstitusi-jadi-undang-undang-f2Mt> accessed 5 July 2021.

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Conformity with Principle of Publicity

This principle refers to the opportunity given to citizens to be present at the time of voting and refers to parliamentary work publicity.⁵³ Jeremy Waldron believes that when a law is to be amended, the changes must be made openly in a public and transparent process.⁵⁴ This principle also underlies recognizing the importance of media reporting regarding all of the legislature’s work.⁵⁵ In addition, this principle also applies to the meeting transcripts or report publications taking place within the legislature.⁵⁶

The essence of this principle is manifested in the principle of openness as stated in Article 5 letter g of the P3 Law where the public is entitled to the broadest possible opportunity to provide input during legislation formation.⁵⁷ Unfortunately, as can be seen from the DPR official website, there are very few publications related to the legislative process of the second amendment to the KPK Law.⁵⁸ The transcripts of the meetings were not published at all, and even though there was a brief report of one of the meetings, the report did not contain any helpful information because the meeting was a “closed” one. There is also no recorded audio or video of the entire bill deliberations on the DPR’s official website.

Even though there is an official limited broadcast television and radio production unit under the Parliamentary News Bureau, the Secretariat-General of the DPR has the task of disseminating information relating to the thoughts, policies, activities, and decisions of the Parliament to all Indonesian people (covering the meeting plenary session, activities of commission meetings, and other board equipment).⁵⁹

During the formulation of the Job Creation Law, the principle of publication was also not adequately reflected. Firstly, on the DPR’s official website regarding the bill process timetable, no detailed meeting transcripts were attached.⁶⁰ Secondly, there were no documents attached to the records on the website during the plenary session, whether in the forms of meeting transcripts or report notes.⁶¹ Third, although several meeting proceedings have been broadcasted by the Parliament’s TV Channel, the recordings are not available in their entirety on the DPR’s official channel.

Based on our search, out of a total of 64 meetings held, there were only about 25 meeting agendas whose videos of deliberation proceedings were accessible to the public.⁶² Among them are Baleg’s work meetings with the Coordinating Minister for the Economy, Minister of Law and Human Rights, Minister of Manpower, Minister of Home Affairs, Minister of Environment and Forestry, Minister of Agrarian Affairs and Spatial Planning, Minister of Energy and Mineral Resources, Minister of Koperasi and Small and Medium Enterprises,

54 Jeremy Waldron, Political Political Theory: Essays on Institutions (Harvard University Press 2016), 154; See also, Ignas Kalpokas, A Political Theory of Post-Truth (2018); Kuskridho Ambardi, R William Liddle and Saiful Mujani (eds), ‘Introduction: Indonesia and Critical Democracy’, Voting Behavior in Indonesia since Democratization: Critical Democrats (Cambridge University Press 2018).

56 ibid.

57 ibid.

58 See, DPR RI Program Legislasi Nasional – RUU tentang Perubahan Kedua atas Undang-Undang Nomor 30 Tahun 2002 tentang Komisi Pemberantasan Tindak Pidana Korupsi (n 18). https://www.

dpr.go.id/uu/detail/id/88 accessed 05 July 2021.

59 DPR RI, ‘TVR Parlemen’ (DPR RI), https://www.dpr.go.id/serba-serbi/tv-parlemen accessed 05 July 2021.

60 DPR RI, ‘Program Legislasi Nasional – RUU Tentang Cipta Lapangan Kerja (Omnibus Law)’ (www.dpr.

go.id) <https://www.dpr.go.id/uu/detail/id/442> accessed 5 July 2021.

61 ibid.

62 Based on a search on the DPR RI YouTube channel, which can be accessed from ‘Https://Www.

Youtube.Com/Channel/UCejL25NjyNxlMR0JqlFX4Dg’ and ‘Https://Www.Youtube.Com/Channel/

UCEklVpzY3PZEVkkrPsqHWkg.’

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Minister of Public Works and Housing, as well as the Minister of Agriculture on April 14, 2020; DIM⁶³ discussion meeting on the Job Creation Bill by the Baleg working committee on May 20, June 3, June 4, June 29, August 7, September 10, September 12, September 14, September 15, September 16, September 17, September 18, September 19, September 21, September 22, September 23, September 24, September 25, September 26, September 27, September 28, 2020; a working committee meeting to present the results of the discussion of the Formulating Team and the Synchronization Team of the Job Creation Bill on October 3, 2020; work meeting for decision-making level I with the Government on October 3, 2020; and the 7^th DPR plenary meeting to pass the Job Creation Bill into law.

In our opinion, the practice above has not been able to satisfy the values contained within the principle of publicity since there are still stages in the deliberation stages of the Job Creation Law that are closed to the public. During deliberations, there are also many irregularities. For example, during the DIM discussions on June 28, there were no comprehensive meeting transcripts and documentation in the form of videos issued by the DPR. When referring to the available DPR short report, the meeting was held for 2 hours and 8 minutes and was noted to have agreed upon 6,652 DIM.⁶⁴ This becomes hard to believe if we compare it with other DIM discussions that are documented. For example, at the Baleg working committee meeting on September 24, we noted that to discuss three articles of a bill related to one topic, it took approximately 1.5 hours.⁶⁵

Moving on to the examination of the third amendment to the MK Law. There is not a single document published on the transcripts of the meeting that the public can access on the DPR official website. In addition, in the available flowchart of the bill process timetable, there are only stages of proposing a bill; harmonization meeting; and the flowchart stopped at the 13^th plenary session.⁶⁶ From these stages, the contents of the available documents does not include meeting transcripts.

Regarding the MK Law, we found several videos from the live stream of a number of meetings published by the DPR TV Channel. However, there are only three recorded and available meetings, namely: the work meeting of Commission III of the DPR with the Government on August 24^th, 2020;⁶⁷ the work meeting of Commission III of the DPR with the Government on August 25^th, 2020;⁶⁸ and the work meeting of the Commission III with the Government regarding level I decision making on August 31^st, 2020.⁶⁹

The three meetings above, though published, do not fulfil the principle of publicity.

Considering the decisions that occur are carried out so quickly without any deliberation in any form. It can also be seen from the videos above when they entered the agenda to convey the views of various factions, what they did instead was submitting written statements.

63 Daftar Inventarisasi Masalah or List of Problems of a Bill Contains the Topics Discussed during a Deliberation Process. Each of These Topics Is Further Elaborated Regarding the Problems Faced and Their Solution, Commonly in the Form of an Article of Law.

64 DPR RI, ‘Laporan Singkat Rapat Panja Pembahasan Daftar Inventarisasi Masalah (DIM) RUU Tentang Cipta Kerja—Tanggal 28 Juli 2020’ (2020) <https://www.dpr.go.id/dokakd/dokumen/BALEG- RJ-20200805-104229-3996.pdf>.

65 DPR RI, ‘LIVE STREAMING – Komisi III DPR RI Rapat Kerja Dengan Pemerintah’ (2020) <https://

www.youtube.com/watch?v=thOOmsQXPyk&ab_channel=DPRRI> accessed 5 July 2021.

66 DPR RI, ‘Program Legislasi Nasional – RUU Tentang Perubahan Ketiga Atas Undang-Undang Nomor 24 Tahun 2003 Tentang Mahkamah Konstitusi’ (2020) <https://www.dpr.go.id/uu/detail/id/500>

accessed 5 July 2020, accessed 05 July 2021.

67 DPR RI, ‘LIVE STREAMING – Komisi III DPR RI Rapat Kerja Dengan Pemerintah’ (n 65).

68 ibid.

69 ibid.

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A Comparison of Legislative Procedure Arrangements in Indonesia and the United Kingdom

Accommodating Public Participation

Formally, public participation in the legislative process is constructed as an inherent right for the people. The normative guarantee of the existence of this right lies, for example, in Article 96(1) of the P3 Law. However, we consider that the inadequate regulation of public participation in the formation of laws in Indonesia can be summarized through two significant problems.

Regarding the first problem, various provisions use nomenclature or phrases that tend to be indecisive and imply that the provisions in question are optional and can be ignored.

Here we highlight the widespread use of the phrases “can” and “or” in the formulation of articles regarding how the public should be involved and what mechanisms should be used when formulating laws.

In the provisions regarding the preparation of the Prolegnas in the DPR’s Code of Conduct, for example, in the dissemination of the Prolegnas, the existing provisions state that dissemination at the time of preparation is carried out to provide information and/or obtain input from the public and stakeholders.⁷⁰ Then the dissemination after the determination is carried out through outreach to the public and stakeholders and/

or through the mass media, both print and electronic.⁷¹ In drafting a bill, there is also a provision that states that in drafting a bill, members of the DPR, commission, joint commission, or Baleg, can request input from the public as material for perfecting the draft of the bill.⁷² To obtain such input, it is further determined that the commission, joint commission, or Balegmay hold a public hearing; and working visits—local or abroad.⁷³ Other examples can also be seen in Article 88 and Article 96 of the P3 Law; Articles 119, 238, 243, 245 of the DPR’s Code of Conduct; and Articles 41, 50, 53, 54, 60, 61 of House of Representative’s Regulation No. 2 of 2020 on the Formation of Laws.

Some provisions construct public participation as a right enjoyed by legislators. In being constructed as a “right”, the member concerned may not involve the community based on choosing not to exercise the rights they have. This can be seen, for example, in Article 224 of the DPR’s Code of Conduct. It is stated that members of the DPR have the right to conduct socialization of the law conducted during the recess to explain the Prolegnas, the formation of a new act, and its implementation to obtain input and feedback from the public.⁷⁴

The second main problem, in the DPR’s Code of Conduct, there are no advanced technical provisions regarding how ideally a public participation activity should be held when drafting a law. Some existing provisions only provide categories of activities that can be carried out to involve the public without providing further clarity on the difference between each of these activities, for example, it is regulated that the White Paper that has been prepared can be tested publicly with experts, practitioners, and stakeholders.⁷⁵ The form of the public test itself is only regulated that it can be carried out through workshops,

70 Bold by author. Article 122(3), House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

72 Bold by author. Article 128 paragraph (1) and (2), House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

74 Bold by author. Article 224 paragraph (1) and (3), House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

75 Article 50(6), House of Representatives’ Regulation No. 1 of 2020 on Code of Conduct.

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seminars, or discussions.⁷⁶

In other provisions, there is a conflation of meaning one-way communication from legislators to the public with two-way dialogical communication activities between legislators and the public. It can be seen in 53 of the DPR’s Code of Conduct; paragraph (6) reads: “the dissemination as referred to in paragraph (1) letter c is carried out to provide information and/or obtain input from the public and stakeholders.” In paragraph (7), it is further emphasized that dissemination can be done through media, electronic media, workshops, seminars, and/or discussions. Thus, some provisions of the DPR’s Code of Conduct allow legislators to, for example, to simply disseminate information through the mass media and can claim that they have aligned themselves with the public participation ideal as regulated by existing laws and regulations.

When compared to the United Kingdom, in every stage of the legislative process, public participation is a binding obligation for the lawmakers at the planning stage. There is a Code of Practice on Consultation officially issued by the Government of the United Kingdom, which sets out best practices and what the public can expect when the Government decides to hold a consultation forum. The document contains consultation standards or criteria, namely:⁷⁷ when should consultations be conducted; duration of consultation; the contents of the consultation document to be disseminated to the public; accessibility of consulting activities; conditioning the consultation burden for participants; how to ideally respond to the results of the consultation; and directions on how public officials conducting consultations can carry out their activities effectively.

Arrangements in the United Kingdom also expressly distinguish the various methods of public participation. Compared to Indonesia, the United Kingdom does not equate the position of providing one-way information such as “socialization” with activities such as public consultations that aim to influence a policy into one category.⁷⁸

When proposing a legislative program, there are two different documents that the bill initiator (the Government) can prepare. The first document is called Green Papers, which is prepared to invite discussion/debate with the public regarding the formulation of specific policies without being accompanied by a commitment to the formation of concrete laws.⁷⁹ The second document is called the White Papers and is issued as a policy statement by the Government, which generally outlines proposals for legislative changes which may later be debated before a bill is introduced to Parliament.⁸⁰ Some of the preparation of White Papers can be accompanied by inviting comments from the public or stakeholders on policy directions.⁸¹

In addition, public participation through public consultation in the formation of an act in the United Kingdom is also guaranteed by, for example, an agreement from the Parliamentary Business and Legislation Committee of the Cabinet (PBL Committee) is required at the following stages:⁸² when applying for a slot in a legislative program; when issuing a bill in a draft; just before its introduction in Parliament, to approve the final draft of the bill; and for any amendments to the bill after its introduction in Parliament.

77 Government of the United Kingdom, ‘Code of Practice on Consultation’, accessed 05 July 2021.

78 ibid, 7.

79 House of Commons, ‘White Papers and Green Papers Received since Last Bulletin’.

80 ibid.

81 ibid.

82 United Kingdom Cabinet Office, ‘Guide to Making Legislation’ <https://assets.publishing.service.

gov.uk/government/uploads/system/uploads/attachment_data/file/645652/Guide_to_Making_

Legislation_Jul_2017.pdf> accessed 5 July 2021.

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If a government department has a proposal for a bill that it wants to be included in the legislative programme of a session, it must submit a bid to the PBL Committee.⁸³ This process will be pursued through annual bidding round when the Speaker of the House of Commons, as Chair of the PBL Committee, invites cabinet members to bid for the bill for the next session of Parliament.⁸⁴ The submission must be made by submitting a letter to the Chair of the PBL Committee with the application template available from the PBL Secretariat.⁸⁵ The programme will be reviewed in preparation for the Queen’s Speech. The PBL Committee will consider all applications submitted for the session based on priority and readiness and ultimately recommend the cabinet regarding the ‘provisional content’

of the legislative programme.⁸⁶

In considering whether a bill should be given a temporary slot, the PBL Committee will consider factors such as: the need for the bill (and whether a similar outcome can be achieved with secondary legislation or without the law); its relationship to the government’s political priorities; the progress that has been made in working on the bill proposal; and whether the bill has been published in draft form for consultation with the public, experts, and related parties.⁸⁷

If one of the above prerequisites is not met, the PBL Committee may refuse the assignment of a temporary slot and it may result in the bill being dropped.⁸⁸ Similar guarantees can also be seen in the existence of pre-legislative scrutiny mechanisms which also include formal consultations with the public on the bill.⁸⁹

Post-Legislative Scrutiny

The existence of Post-Legislative Scrutiny (PLS) in Indonesia can be said to have been formally recognized by the existence of Articles 95A and 95B of the P3 Law Amendment, which accommodates the PLS mechanism.⁹⁰ However, when this article was written, the Government did not yet have a derivative regulation regarding the monitoring and review of laws. The available derivative regulations from the DPD side also only allow the DPD to monitor and review regional draft bills and regional regulations.⁹¹

Derivative regulations for PLS within the DPR are accommodated through DPR Regulation No. 2 of 2020 on the Formation of Laws. However, suppose the provisions of the regulation are examined further. In that case, the regulation only regulates how Baleg will later check whether the implementing regulations ordered by the law have been formed and the suitability of the contents of the implementing regulations with the content of the law.⁹² The provisions contained in Articles 95A and 95B of Law no. 15 of 2019 and DPR Regulation No. 2 of 2020 also do not regulate the minimum or maximum time limit when a law that has been passed must be monitored and reviewed. In other words, this has implications for the possibility that the implementation of PLS in Indonesia can be

83 United Kingdom Government’s Official Website, ‘Guidance – Legislative Process: Taking a Bill through Parliament’ <https://www.gov.uk/guidance/legislative-process-taking-a-bill-through- parliament#preparation-of-the-bill> accessed 5 July 2021.

84 United Kingdom Cabinet Office (n 82), 11.

85 ibid.

86 United Kingdom Government’s Official Website (n 83).

87 ibid.

88 United Kingdom Cabinet Office (n 82), 216.

89 ‘House of Lords Select Committee on the Constitution, “The Legislative Process: Preparing Legislation for Parliament”, HL Paper 27, 2017, Pp. 16-27.’

90 Article 95A and 95B, Law No. 15 of 2019.

91 See Regional Representative Council’s Regulation No. 3 of 2019 on the Monitoring and Evaluation of Draft Regional Regulations and Regional Regulations.

92 Article 118, Regional Representative Council’s Regulation No. 2 of 2019 on Code of Conduct.

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interpreted by legislators as something that is not mandatory. Moreover, there is no mechanism to evaluate the whether enacted law presents the desired implications in the public as expected when the relevant bill was proposed and discussed.

In contrast, the two legislative chambers (Commons and Lords) in the United Kingdom engage in PLS on equal footing. Although there are some differences in the implementation and the approach used, the two chambers assign select committees from each chamber to carry out PLS.⁹³ According to conventions, three to five years after a bill has been promulgated, the initiating department of the bill will prepare a memorandum to make a brief initial assessment of the implementation of the law in practice which will then be submitted to the relevant departmental select committee in each chamber.⁹⁴ The committee concerned will determine whether it will be necessary to carry out a more thorough PLS or not.⁹⁵

Minimally, the UK Cabinet Office’s “Guide to Making Legislation” recommends that the memorandum contain at least:⁹⁶ a summary of the purpose of the act; information regarding when and how the articles in the law concerned have been operationalized; a brief description or list of relevant delegated legislation, guidance documents, or other relevant material prepared for the relevant act; legal issues; summary of post-legislative reviews or other reviews of laws that have been carried out by the Government, Parliament, or other parties; and a brief initial assessment of the law on how it has worked in practice compared to the objectives or benchmarks when the bill was proposed and discussed in Parliament.

Fast-Track Legislation Arrangements

Indonesia’s procedural regulations do not officially accommodate the expediting of a bill deliberation through a fast-track mechanism. However, we see that there are at least a few reasons that could allow the DPR to “speed up” or skip stages in bill formulation.

The main reason is that most of the available provisions only determine the maximum time limit taken in a particular stage or activity. For example, the provision regarding the dissemination of the Prolegnas after the determination to provide information and/

or obtain input from the community and stakeholders only stipulates that the activity must be held no later than 30 days from the date the Prolegnas is enacted.⁹⁷ Meanwhile, the mechanism for expediting the deliberation of a bill becomes possible through the provisions of Article 290 of the DPR’s Code of Conduct.⁹⁸

One of the provisions that we found where it became possible to officially skip one of the predetermined stages was the provision regarding the mechanism for submitting bills outside the Prolegnas. In certain circumstances, the DPR or the President may submit a bill outside the Prolegnas when it includes efforts to overcome extraordinary circumstances, conflicts, or natural disasters, and other circumstances that warranted national urgency for a bill to be immediately passed into law.⁹⁹ Such bill can be submitted to Baleg containing the reasons of urgency along with a White Paper and a draft bill.¹⁰⁰ As discussed in the previous section, this means that if the bill is approved, it will skip at least the Prolegnas socialization stage.

93 See Philip Norton, ‘Post-Legislative Scrutiny in the UK Parliament’ (2019) 25 he Journal of Legislative Studies 8;

94 United Kingdom Government’s Official Website (n 83).

95 ibid.

96 United Kingdom Cabinet Office (n 82), 296-297.

97 Article 41 and 42, House of Representative’s Regulation No. 2 of 2020 on the Formation of Laws.

99 Article 43, House of Representative’s Regulation No. 2 of 2020 on the Formation of Laws.

100 Article 45, ibid.

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Compared with the United Kingdom, the existing provisions regulating the minimum time intervals taken from each stage when discussing a bill. When conducting public consultations, the standard set by the House of Lords Secondary Legislation Scrutiny Committee and the House of Lords Select Committee on the Constitution in one of their reports is that the Government should prioritize the interests of prospective respondents over their administrative convenience.¹⁰¹ Therefore, the time for holding public consultations must provide sufficient, proportionate, and realistic time for stakeholders respond for the benefit of consultation activities.¹⁰² According to the Code of Practice on Consultation, public consultations must be held within a minimum of twelve weeks, except for exceptional cases.¹⁰³ If there is no formal consultation by the Government, the minimum limit is four months from the publication of the draft bill. The committees that carry out these pre-legislative scrutinies must have at least twelve weeks to scrutiny the draft bill to report the results.¹⁰⁴

Another example of the limitation of the minimum interval that must be passed at each stage of the legislative process in the United Kingdom is when a bill is considered in the House of Lords and the House of Commons. Generally, there must be a two-week interval from the first reading stage to the second reading stage.¹⁰⁵ Two weeks must also be passed before entering the committee stage and when entering the report stage afterward.

If Parliament wants to expedite the discussion of a bill that will later bypass the above provisions, some prerequisites and mechanisms still must be complied with. In essence, when a bill wants to apply the fast-track method, the Government or the initiator of the fast-track bill explains to the two Parliament Houses the reasons for adopting the method, and then the proposal must acquire majority approval.¹⁰⁶

Of the various standards that must be met as prerequisites, one of which requires the Minister who is responsible for the fast-track bill to issue a written memorandum containing or answering the following points:¹⁰⁷ why fast-track is needed; what is the justification for accelerating the discussion of each element of the bill in question; what efforts have been made to maximize the amount of time available to examine the bill in question; the extent to which interested parties and communities have been involved; the existence of a sunset clause in the bill and an explanation if it is not included; whether there is the inclusion of a PLS mechanism; whether a regulatory impact assessment has been carried out; and whether the relevant Parliamentary committees have been allowed to examine the proposed bill.

101 ‘House of Lords Select Committee on the Constitution, “The Legislative Process: Preparing Legislation for Parliament”, HL Paper 27, 2017, Pp. 16-27.’ (n 89), and see also, ‘House of Lords Secondary Legislation Scrutiny Committee, “The Government’s Review of Consultation Principles – 17th Report of Session 2013-14”, HL Paper 75, 2014’.

102 ibid.

103 Government of the United Kingdom (n 77).

104 ‘House of Lords Select Committee on the Constitution, “Pre-Legislative Scrutiny in the 2007-08 Session – Report”, HL Paper 66, 2009, 10.’

105 Robert Rogers dan Rhodri Walters, How Parliament Works, 7th Edition (Routledge Publishing 2015); See also, Philip Sales, ‘The Contribution of Legislative Drafting to the Rule of Law’ (2018) 77 Cambridge Law Journal 630.

106 Jack Simson Caird, The Constitutional Standards of the House of Lords Select Committee on the Constitution (2nd editio, The Constitution Unit 2015), 17; See also, A Ahsi Thohari, ‘The Manifestation of the Rechtsidee of Pancasila in Regulating the Constitutional Rights in Indonesia’ (2019) 4 Petita:

Jurnal Kajian Ilmu Hukum Dan Syariah 149; Obikwu, ‘The Federal Constitution, National- Ethnic Minority Groups and the Creation of States: The Post–Colonial Nigerian Experience’ (2017) 2 Petita:

Jurnal Kajian Ilmu Hukum Dan Syariah <http://petita.ar-raniry.ac.id/index.php/petita/article/

view/56>.

107 Jack Simson Caird (n 106).

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Omnibus Legislation Methods

Regarding the formation of laws using the omnibus method, Indonesia’s positive law does not accommodate the drafting method of a bill in which there is various content that has no correlation with one another or changing the provisions or revoking numerous provisions of various laws that are currently in force through one single bill. In Indonesia, all methods and procedures for forming laws and regulations have a primary reference, namely the P3 Law and its amendment. Article 64 of the P3 Law stipulates that the drafting of laws and regulations is carried out per the technique of drafting laws and regulations, the provisions of which are contained in Appendix II of the P3 Law and are an inseparable part of the P3 Law.¹⁰⁸ The appendix does not accommodate the omnibus method.

The drafting of bills using the omnibus method in the United Kingdom, also known as

‘christmas tree’ bills or ‘large multi-topic bills’, was also not adopted formally.¹⁰⁹ This method is rarely used in practice. After all, based on the standards set by the House of Lords Select Committee on the Constitution in its report on the Coroners and Justice Bill, it should be avoided because it hinders legislative scrutiny.¹¹⁰

On the other hand, the House of Lords House of Commons Joint Committee on Human Rights concluded that if there are essential human rights issues raised in a bill, the committee recommends that the Government propose such a bill in two or three separate drafts.¹¹¹ This ensures that a law product will be created which will substantially achieve the objectives of its policy direction and ensure that there is sufficient time for pre-legislative and commite stage scrutiny in the House of Commons and Lords.¹¹²

Conclusion

Based on our analysis, it was found that the legislative process in Indonesia is still not in accordance with the fundamental principles of the legislation process. We also see further that this problem is not only caused by deviations from the available normative provisions. We consider that the current procedural norms regarding the formation of laws are not yet able to firmly act as a guarantor that every bill discussed in the DPR will be procedurally sound and through several existing provisions, it allows for broad interpretation by legislators who want to expedite the deliberation of a bill or not involve public participation. Therefore, here are some suggestions that can be considered for improving the process of law-making in Indonesia.

First, it is necessary to set a minimum time requirement to discuss a bill or a minimum time interval from one stage of law-making to the next. Second, public participation in every law formation needs to be made mandatory, not an optional one that can be replaced by socialization practices or other forms of information delivery. Third, it is also necessary to establish the obligation to publish a White Paper, draft bills, and the results of meetings from each stage of the bill’s discussion. Fourth, there needs to be a formal legal provisions regarding the procedures for using omnibus legislation and fast-track legislation by setting strict prerequisites not to be easily used continuously for mere political interests. Finally, we suggest that the DPD is also given the mandate to do PLS on national acts, and there must be firm provisions regarding when PLS should be held after a bill is passed into law.

In addition, the scope of the PLS should also include an impact assessment of the law and a thorough evaluation of the legislative processes that have been passed.

108 Article 64 paragraph (1) and (2), Law No. 12 of 2011 on the Formation of Laws and Regulations.

109 Audrey O’Brien dan Marc Bosc (ed), House of Commons Procedure and Practice (Éditions Yvon Blais 2009), 724-725.

110 See Jack Simson Caird (n 106), 13.)

111 ‘House of Lords House of Commons Joint Committee on Human Rights, “Legislative Scrutiny: Coroners and Justice Bill – Eighth Report of Session 2008-09”, HL Paper 57 Dan HC 362, 2009’, 7.

112 ibid.

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