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The Middle Way for the Job...

The Middle Way for the Job Creation Bill

Name: The Middle Way for the Job Creation Bill
Uploaded: 2020-03-06T08:41:13Z
Duration: 20 min 32 s
Description: From the beginning, it was not too difficult to predict that the job creation bill would spark a reaction, polemic and even debate. What was not expected was rejection.

From the beginning, it was not too difficult to predict that the job creation bill would spark a reaction, polemic and even debate. What was not expected was rejection.

BAMBANG KESOWO

· 14 minutes read

Differences of views or opinions are plural. However, the question that remains is then how? Will it be finished or not? Therefore, paying close attention to the drafting of the law itself is important so that the problem map becomes clear.

To make the perspective objective, for the sake of finding a way out, shouldn\'t the criticism also be accompanied by a solution?

The objective is good

If it is examined more closely, both the discourse during the deliberation and the explanation given after the birth of the bill, it should be recognized and accepted that the background of thought and goals to be achieved is good. Isn\'t the simplification of licensing good, and should be realized?

Isn\'t providing ease of business also important? The complicated business licensing procedures and processes should be trimmed. Long and long-winding ones are shortened and accelerated. Isn\'t that all good?

Also read : A Look at the Job Creation Bill

The mindset as translated in "Considering letters b and c" of the bill is quite clear. The objectives to be realized are also stated clearly in Chapters II of Articles 2 to 6. The question of the formulation, of course, could have been refined. In short, as many have argued, the political policy is good and the objective is also clear: expand, facilitate and accelerate job creation. Then what is the problem?

In addition to emphasizing a number of key policies, the bill, which contains 15 chapters and 174 articles, also contains a description of the desire to realize the objective. How to do it is through amending and removing the provisions and revocation of the laws, which if counted reaches 91 laws. Whether or not it is precise, if the description of the way and how to realize the objectives is examined, there are approximately 1,253 points or steps contained in the bill. However, if the material at each point or step is examined, outside the macro issue of the way and form of approach, the number could possibly increase.

It can be imagined that perhaps as many as that number is also the problems which will later become a guide for deliberation in the DIM (list of problem contents) for discussion at the House of Representatives (DPR) later. It seems that the matter of scope, material, and elaboration techniques are what many feel to be "not measurable". What and how is the root of the problem?

Also read : Forestry and the Job Creation Bill

Formal or procedure aspects

Starting this aspect, the question is: can the steps for amendment, deletion, and revocation of many laws (UUs) mentioned above be carried out through a single law as what will be taken in the Job Creation Bill? What if it is judged in terms of the rules of making legislation as regulated in Law No. 12 of 2011 in conjunction with Law No. 15 of 2019?

Like other Indonesians who are bound by all of the laws of this country, members of the DPR will surely also examine the question with Law No. 12 and 15. The mandate is that the formation of laws and regulations must be carried out in a definite, basic and standard way and method which bind all institutions which are authorized to form laws and regulations. Isn’t to provide certainty, standardization, and standards, Law No. 12 in conjunction with Law No. 15 itself is even the one which regulates and thus must be heeded?

Also read : “Omnibus Law”, Between Labor and Productivity

Apart from things that are normative and theoretical, understanding and practice that has been held so far, whenever the provisions in Law A want to be amended or eliminated, draft an amendment bill on Law A. Similarly, if the provisions in Law B want to be revoked, submit the revocation bill of Law B. Now, will new ways, forms and traditions begin, namely amending, deleting, and or revoking several laws at once through one law such as the Job Creation Bill? But, if the new ways, forms and traditions are to be realized, doesn\'t this mean that it must first change Law No. 12 of 2011 in conjunction with Law No. 15 of 2019?

The consequence of wanting to live in a systemic and orderly way is so. That is if it is not to be said to be in tantrums. It is certainly misleading to assume that the omnibus method is a way to delete, change, or revoke one or even many laws at the same time as or through one law.

It is as similarly misleading as misconceptions that appear thus far, when attaching the predicate of law for the omnibus. Omnibus is not a legal thing, nor is it a law. Omnibus is a method for arranging the implementation of a political policy in various activities, each of which has been regulated separately in many laws. Omnibus is indeed not a law or act, nor is it an instrument, which is dubbed sapu jagat or “one-size-fits-all” approach, to cut down.

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Therefore it is also wrong if simply for the justification of the steps, then Law No. 9 of 2017 concerning Access to Financial Information is used as a defense and equivalent method in this Job Creation Bill.

In fact, Law No. 9 is precisely the one which applies the omnibus method (although perhaps because at that time it was not yet known, that it did not say it as such). The political policy is clear, namely providing access to financial information to the Director General of Taxes to request and be able to obtain financial information in the banking, capital market or other financial institutions. Giving access to information without changing or removing or revoking any provisions in various banking, capital market or other laws. Therefore, from just one example in this formal/procedure aspect, the problem has appeared. What about the questions with regard to the contents of the Job Creation Bill?

Substance aspect

Much of the substance in the bill seems to require approach and vigilance. Issues around environmental impact analysis (Amdal), building permits, revocation of the nuisance law, press business, central and regional relations in connection with withdrawal of authority, change of criminal system with fines, abolition of the obligation to use patents in Indonesia (read "Omnibus passengers", Kompas, 13/2/2020), and others, are just a few examples of the need for carefulness and vigilance in matters of materials and the impact of this bill.

What will later happen to the new policy direction and the form of the new order in the substantive issues, surely becomes the authority of the President and the House to later discuss it. However, these issues are only part of the substance of the problems that now get a public attention, and actually also the interests of the government itself. That is also right: the devil is in the detail.

Likewise, efforts to reform the concept of authority. The assessment that the main factor in licensing lies in the matter of authority is not wrong. The arrangement of authorities into sectors, as the authority of ministers/leaders of institutions, is emphasized in various laws in the related sectors. This gives birth to a wall and a partition in the administration of government or public service. It has been going on for a long time and is rooted in the history of our development. Not only do these walls and boxes give rise to overlapping processes, but they also are diverse, long, and making things difficult.

Efforts to emphasize that the authority of ministers in various existing laws is read as the authority of the President (Article 164 Chapter XI on the Implementation of Government Administration to support Job Creation), therefore, can be understood. However, if an opportunity like now is considered as a momentum for improvement, it should be done with the basic sequence and arrangement of thought.

Beyond the title of Chapter III on the Power of State Government, in fact the Constitution only recognizes the term president in the constellation of the administration of state power. The president is the government. The "central" appendage, which is then used in the next formula, does not reduce the essence at all. Although through the amendment of the Constitution the power to make the law be shifted to the DPR, the organizer of the power of state government is still the president. The president (and vice president) also vows to always uphold the Constitution and implement all its laws and regulations. Breaking the oath, the president could be subject to a case.

Therefore, if the intention is to fix, improve, this is the momentum. Affirm the political and legal position that the president is the government. The President is the organizer of government power. All government authority first comes from and is in the hands of the president. There is no need to be ambiguous in asserting governmental authority in every law.

It is a goal that governmental authority -- including licensing in each sector or field -- can be controlled, and overlapping can be avoided.

More explicitly, more clearly, just use one word: president. Whether the president later delegates a part of the authority (say in each sector regulated in the related law), it is the responsibility of the president. It is a matter of effectiveness and efficiency in government management. There are binding rules. Above all, it is a goal that governmental authority -- including licensing in each sector or field -- can be controlled, and overlapping can be avoided.

Try to also think of examples of the commotion of thought as when Article 164 Chapter XI of the bill intends to emphasize the president\'s authority, but elsewhere in the same bill still sells out the term "central government" (consisting of president, vice president, ministers, heads of agency) in matters related to the licensing.

The commotion of thought also seems to be the source of debate about the conception of the use of government regulations (PP) for the purposes of changing the law (Article 170 of the bill). The ordering of legislation is clearly not possible. However, if we examine through the thoughts contained in Paragraph (1) of Article 170 of the bill, the problem becomes clear. This is not a matter of typo, not drafting fault, nor is it a matter of misinterpreting commands, far from it. The problem stems from the wrong thought design and perception.

As it is later argued that the PP is used to change the law in Law No. 13 of 1985 concerning Stamp Duty, Law Number 8 of 1983 concerning VAT, Law No. 24 of 2004 concerning the Deposit Insurance Corporation, or Law 40 of 2014 concerning Insurance, this is a clear example of wrong reference. Delegation of authority granted to the president to amend the law using PPs, is limited to changes in stamp duty rates, taxes, and the magnitude of insurance business capital. Such delegation of authority cannot be used as a general rule or pattern for changes in legislation!

Those are examples of substantial problems. Beyond that, anticipating the possibility of a legal vacuum that arises from the unprepared device, which is even ordered in the law, is also worth watching out for. Take for example, the concept of revoking land rights and the readiness of the management of the Land Bank as designed in Article 171 (Chapter XIII of Other Provisions). Or another example: orders for the issuance of various regulations within one month starting from the enactment of the law later (Article 173 Chapter XV Closing Provisions) also seems important to consider. What if because of one and many things it cannot be realized?

Political dimension

The writer is not a politician. However, what if the differences in perspective and understanding of all formal and substantial aspects are not managed well at the level of political parties when they discuss the Job Creation Bill? Conflicts of opinion that start from the vision and perspective of each of them will be intensifying, both about the handling process and about the final form of the bill itself. That can happen not only among coalition political parties but also outside them. In the coalition itself it is also not impossible that friction will occur. If that happens, it will not only be intensifying inside the House building, but it will spread widely through the media.

Nor is it impossible, and perhaps not many people suspect that there is any support which develops for whatever the current position of the bill will be. If that is the case, the academic world and professional groups that also try to build and maintain the national order (including in the field of law and legislation) will react violently. In turn, the public will surely follow and join in the commotion.

Could there be a way out?

Far from being knowledgeable let alone patronizing. By paying attention to the spectrum of issues or their possible impacts, it is better for all parties to be wise in responding to the handling of the Job Creation Bill. If the objective is good and therefore worth safeguarding, the matter of the form and content of the bill should also be weighed wisely. There needs to be a spirit of take and give, there needs to be a spirit of deliberation in handling it. There should also be a kind of "middle way" in its settlement. The president gets political goals that he wants to realize, but are flexible in terms of content, and the manner and form of its deliberation, or the time for handling it.

Using the omnibus method, the bill includes the main political policies and objectives that will be realized, and provides guidance on the principles of authority, simplification of licensing, and ease of doing business on all fronts, for the sake of job creation. Meanwhile the implementation of changes, deletions of provisions, or revocation of certain laws are outlined in the form of a bill for amendments, deletions, or revocation of the relevant laws. The procedure follows the principles in Law No. 12 of 2011 in conjunction with Law No. 15 of 2019. Technically, this should be able to take place relatively quickly by moving materials that are already in the section or paragraph in the Job Creation Bill, and giving each of the clothes of the bill itself.

The president gets political goals that he wants to realize, but are flexible in terms of content, and the manner and form of its deliberation, or the time for handling it.

Another possibility that can be weighed, and still remains with the omnibus method, is the Job Creation Bill as it is now, but it limits its content to certain fields, for example, simplifying the licensing in the investment and MSME sectors. This step can have an omnibus meaning in its true meaning, as a method as in Law No. 9 of 2017. Similar steps can be taken for political policies relating to land acquisition and the smooth running of projects.

The consequence being faced is the large number of bills that must be prepared. Considering the great importance, everything must indeed be proposed and its completion is prioritized in 2020. That all of this will sideline the bills that has been scheduled in Prolegnas (National Legislation Program) 2020, clearly they will be considered based on urgency. The will to agree in a deliberation between the president and the DPR will be decisive. From the Prolegnas side, doesn\'t Article 23 Paragraph 2 letter b of Law No. 12 of 2011 in conjunction with Law No. 15 of 2019 provide a way for that?

All of that will require a lot of work, extra time and energy, and is not light. But is there really an easy, fast, and inexpensive way to realize this political policy and the goal of creating employment? Those are indeed the challenges. Yes for the president, yes for the DPR.

The method of the resolution, if it is pleasing to consider it as a middle way, seems to require the generosity of all parties having the authorities in making laws. Politically, the president needs to agree with the leaders of the DPR and their existing factions. In order to give the foundation for it, because all members of the DPR have direction in their recess, the president can discuss in advance and make the agreement with the general chairmen and leaders of existing political parties. Hopefully this will be favored by the leaders of this country. Once again, hopefully.

Bambang Kesowo, Lecturer at postgraduate law school at Gadjah Mada University; chairman of the board of supervisors of the National Resilience Institute Alumni Association (IKAL Lemhannas).

Editor:

Syahnan Rangkuti

House of Representatives omnibus law job creation bill regulations amendment bill