The draft contains almost 500 stipulations to be implemented through government regulations (PP). The stipulations to be delegated through PPs far exceed the number of master articles contained in the bill itself.
By
KHAIRUL FAHMI
·6 minutes read
In the second week of February, the government officially submitted the job creation bill to the House of Representatives (DPR). With a rather confusing structure of stipulations, this bill consists of 174 master articles presented in a 684-page draft, excluding the explanation section.
The draft contains the main articles of the job creation bill as a new law while at the same containing changes and cancellations of stipulations in 79 laws across various sectors. Furthermore, the published draft contains almost 500 stipulations to be implemented through government regulations (PP). The stipulations to be delegated through PPs far exceed the number of master articles contained in the bill itself. The scope of the bill is quite astonishing. For reviewers of the legislation, there is one pressing question: Why are so many stipulations in the bill delegated to PPs?
Normatively, the answer to that question is very simple: Because issuing a PP is easier. In accordance with Article 5 Paragraph (2) of the 1945 Constitution, PPs are stipulated by the President in the context of implementing a law. Therefore, a PP as a subordinate piece of legislation is completed at the president\'s desk without having to go through a long process at the House. Thus, when a bill delegates a large number of provisions to PPs, it can be inferred that the drafters of the bill want to provide more space for the government to make arrangements.
Besides the normative reasons, the academic notes on the job creation bill explain the paradigm used in drafting this bill, namely granting the central government greater flexibility, so it is for the sake of the government’s flexibility that the bill delegates a lot of provisions to the PP level.
In the name of flexibility, various governmental authorities from across a number of laws have been subsumed under the authority of the central government. This is consolidation of authority is achieved by formulating articles that confirms the authority of the central government over certain matters, followed by stipulations that delegate the power to formulate implementing rules to the PP level. Therefore, it is very clear that the job creation bill is aimed at using PPs as a means to accommodate the government\'s flexibility in regulating various aspects of people\'s lives that are currently regulated through 79 laws to be amended through the bill.
There are at least three reasons to question this strategy. First, Article 4 of the 1945 Constitution confirms that the president holds governmental authority according to the Constitution. Based on that provision, the president has very broad powers in leading and administering the government. That means the president already have flexibility in exercising his power. However, the flexibility of the president\'s power lies within Constitutional bounds, where his power must be exercised under legal escort.
Secondly, the law is the main legal instrument to guide the exercise of presidential power in accordance with the Constitution. In that context, the law is a means to limit the power of the president, so that he does not move wildly and his power does eventually become limitless and arbitrary. The law must stipulate restrictions, so that government power is in line with the Constitution and the public interest.
The danger of the law delegating too many arrangements to the PP level is very clear.
Third, such broad flexibility as outlines in the normative construction of the job creation bill will place the president at the center in the formation of regulations. Thus, as the holder of government power which also has a dominant position in the formation of regulations, state power will be increasingly concentrated in the hands of the president. As the power becomes more concentrated, the risk of authoritarianism will clearly rise.
These three reasons are also corroborated by the fact that sufficient flexibility for the central government is already ensured through Article 170 of the bill, which stipulates that the law can be amended by PP. The Coordinating Political, Legal and Security Affairs Minister and the Law and Human Rights Minister have admitted the possibility of “typos”. However, this clarification contradicts the Coordinating Economic Minister\'s letter circulating in the public that the provisions have been consciously drafted.
Based on the aforementioned arguments, the danger of the law delegating too many arrangements to the PP level is very clear. Therefore, this bill must be limited, so as not to delegate too much authority to government regulations.
The danger of PP supremacy
The inaccurate interpretation of central government flexibility accompanied by the move to make PPs instruments of that flexibility will give PPs legal power resembling that of a law or even exceeding that of a law. The president\'s legislative power would increase and surpass that of the DPR. Why is this so?
First, based on Article 20 Paragraph (2) of the 1945 Constitution, the President has half of the legislative power. The lawmaking power wielded by the president is as strong as that held by the DPR. With equal power, a law should not be limited to regulating general matters and leaving the rest to PPs. The law must regulate matters in greater detail, so as to reduce opportunities for abuse of power by the government. Second, when the content of the material to be regulated in the law is further simplified and the rest is delegated to PPs, what happens is an addition of presidential legislative power. This will have consequences for the wider power of legislation of the head of government and increase opportunities for abuse.
To stave off harm to the people, the overbearing nature of the jobs bill that gives supremacy to PPs should be eliminated. The DPR should not allow this to pass. The President must not be given a blank check by the House accepting too many delegations of arrangements. Strategic matters related to the execution of governmental authority must be discussed by the DPR and contained in the law.
The delegation of arrangements to PPs should be solely for matters related to interpretation and technical implementation. The restrictions paradigm must be upheld to deal with the destructive idea of flexibility in the job creation bill, because this is the only way to keep the principles of democratic rule of law in the omnibus bill.
Khairul Fahmi, Lecturer and researcher of constitutional and administrative law at the Constitutional Studies Center (PUSaKO) of the School of Law, Andalas University.