As President Joko ‘Jokowi’ Widodo’s first term drew to a close in late September 2019, thousands of students gathered along Jalan Gatot Soebroto, the location of the national parliament building. They demanded that the House of Representatives (Dewan Perwakilan Rakyat or DPR) cancel several problematic bills. Inside the building, members of parliament, with just a month remaining in their terms, were discussing a number of draft laws that would have significant impact on the interests of the state and society.
Some of the draft laws under discussion were widely rejected by civil society and academics. The bill on revision of the Law on the Corruption Eradication Commission (KPK Law) was opposed because it removed the Commission’s independence by placing it under the president. The new Penal Code (KUHP) draft was considered problematic because it contained articles that restricted civil liberties deemed even harsher than the old Penal Code inherited from the Dutch colonial government. The Land Bill was opposed as it was seen to favour the interests of land owners rather than economic equality for the people; and the Mineral and Coal Bill was opposed because it included provisions granting immunity to mining companies proven to damage the environment.
Concerns snowballed into a national movement known as the #ReformCorrupted (#ReformasiDikorupsi). This movement succeeded in delaying the enactment of three of the four controversial bills, but the revision of the KPK Law was passed. Slowly but surely, the KPK which was previously considered the most independent law enforcement agency, was weakened and lost public trust. The KPK lost 58 of its best investigators who did not pass the ‘national vision’ exam (tes wawasan kebangsaan)—a controversial test deliberately used to sideline anti-corruption commission employees who had been critical of its leadership, chosen through a controversial process and inaugurated by President Jokowi at the end of 2019. The concerns of civil society and KPK employees were further justified after KPK Chairman Firli Bahuri became a suspect in a bribery case in November 2023. Bahuri has been suspended, but not charged or detained.
Those 2019 political episodes marked the beginning of a bleak five years for the legislative process in Indonesia, which was also President Jokowi’s second term. Throughout 2020 to 2024, various laws were passed via processes that were not open, rushed, and ignored public aspiration. A transparent parliament and a participatory legislative process have become more of a slogan than a reality on the ground.
Although the Indonesian parliament is responsible for three primary functions (legislative, oversight and budgeting), this article will focus on its legislative function.
Limited transparency
Throughout 2020, when the government implemented social distancing rules to prevent the spread of COVID-19, the House of Representatives (DPR) and President accelerated the discussion of a controversial Job Creation Bill. The so-called omnibus bill, which amended and repealed 80 other laws, was discussed in less than six months with minimum public participation and passed in early October 2020. In the same year, the DPR and the President also discussed the Mineral and Coal Bill, which was delayed in 2019, in just three months. Additionally, they revised the Constitutional Court Law in just one week, extending the tenure of constitutional judges, a judicial body headed by Jokowi’s brother-in-law.
In the various processes of enacting these problematic laws, the parliament, which should serve as a check and balance against the executive branch, instead helped weaken democracy. This has continued. For instance, the Omnibus Bill on Health, criticised by health workers concerned it would result in the commercialisation of the health industry, was discussed in just four months. Then, the New Capital Bill was discussed in just 43 days by the DPR and the President; and The Jakarta Special Region Bill, which abolished Jakarta’s status as the capital city, was discussed in just four days.
After the end of the authoritarian Soeharto regime in 1998, Indonesia began to reform various sectors to strengthen democratisation, including the parliament. The amendments to the 1945 Constitution aimed to strengthen the presidential system of government with a mechanism of checks and balances through the parliament.
In 2018, at the encouragement of a civil society coalition, the Indonesian Parliament committed to encourage openness in the legislative body through the Open Parliament Indonesia (OPI) declaration, which aims to increase transparency, participation, and accountability related to implementing functions in the House of Representatives. OPI is a part of the global Open Government Partnership initiative, which encourages member countries to be more open and include civil society organisations or direct citizen engagement in shaping and overseeing governments.
OPI has a National Action Plan developed with civil society to strengthen parliamentary openness. One of the results is the existence of an online legislation information system (Sistem Informasi Legislasi or SILEG), where the public can see information about the track records, academic papers or supporting documents for a proposed bill, draft bills, problem inventory lists, brief reports of the discussion of bills and meeting minutes that should be updated regularly. However, there are problems.
Not all bills on the annual list of priority bills are accompanied by the mandatory documents, such as academic papers and draft bills. In June 2023, the Indonesian Parliamentary Centre found that only 30.7 percent of bills on the annual list of priority were accompanied by draft bills and only 20.5 percent were accompanied by academic papers. This means that in terms of the mandatory documents for proposing a bill, more than 50 percent of them did not meet requirements.
The Indonesian Parliamentary Centre also found that a number of documents that should have been published on the legislation information system were not published completely. These documents include brief reports, meeting notes, minutes of meetings and other supporting documents such as resource materials. Only 46.6 percent of brief reports (or laporan singkat, which contain the meeting conclusion) from the 2023 list of priority bills were published and only 5.5 percent of meeting minutes from the 2023 list were published.
In 2021, a report on legislative performance or Indeks Kinerja Legislasi titled ‘High Effectivity, Low Accountability’ assessed procedural conformity, transparency, public participation in legislative process, public acceptance, and efficacy. None of the dimensions were categorised as ‘good’ or ‘very good’. There are notes regarding the formation of the Job Creation Bill and the Constitutional Court Bill that are not in accordance with statutory procedures. In relation to the Job Creation Bill, for example, there were several violations of statutory procedures, such as that the draft bill from the plenary meeting was not distributed, there was a lack of meaningful public participation, and there were changes to the text of the law after approval in the plenary.
Although various efforts have been made to improve parliamentary transparency, in general, further improvement is urgently needed.
Unmeaningful participation
The right to public participation in law-making comes from at least two principles adopted in the 1945 Constitution. The first is the people’s sovereignty, as stated in Article 1 (2) of the 1945 Constitution which places the President and the House of Representatives (DPR) as the holders and executors of the people’s sovereignty entrusted by the people through the mechanism of general elections. The second principle is the human right to freedom of expression in Article 28 of the 1945 Constitution. Freedom of expression is a key way the public can put pressure on lawmakers to change particular laws and enact better regulations.
Provisions in the Law on Law-Making should also ensure the protection and fulfilment of the right to public participation in forming laws and regulations. Article 96 of the Law on Law-Making regulates public participation in law-making and is supposed to guarantee the public’s right to provide input verbally and in writing at every stage.
However, there are several limitations to the Law on Law Making and its practice:
- It does not technically elaborate on the guarantee of the principles of people’s sovereignty and freedom of expression.
- Article 96, supposed to guarantee the right to participation, is not followed by an obligation on lawmakers to ensure that this right is protected and fulfilled.
- The intended guarantee that draft regulations and academic papers will be made public is not complemented by a regulation specifying who is in charge of providing these documents.
- Arrangements regarding law makers’ duty to inform the public about the process of law-making are not accompanied by consequences if they are not carried out.
Another significant problem is that the Law on Law-Making does not necessarily mean that the views of groups particularly affected by the laws are properly considered.
An example of the Law’s limitations on public involvement is the discussion in parliament of the Job Creation Law, which did not involve disability groups, even though this law regulates various provisions detrimental to them. Later, Constitutional Court Decision Number 91/PUU-XVIII/2020 declared the Job Creation Law conditionally unconstitutional because it did not fulfil the procedures for the formation of laws and regulations, including meaningful public participation. This decision confirmed that the formation of laws and regulations should consider procedural and formal aspects as well the law’s substance; that is the validity of a law is not only related to its content, it must also be formed with proper procedures and ratified by the competent authority.
The limited impact of civil society organisations and parliamentary monitoring
Unfortunately, the DPR today, after 26 years of reform in the post-Soeharto era is reverting back to rubber-stamping government policy rather than being the ultimate holder of lawmaking power. This means that the gains made in relation to parliamentary openness are critical.
Civil Society Organisations (CSOs), a diverse array of organisations within society, play a crucial role in monitoring parliament’s performance. Their active involvement is instrumental in ensuring transparency and accountability in parliamentary practices.
In general, CSOs in Indonesia participate and monitor parliamentary work in two ways:
- Directly engaging with parliament, which usually takes the form of technocratic work, i.e., providing technical input on legislation, budgeting, or oversight policies of parliament. In this way, CSOs are present in public hearings, known as Rapat Dengar Pendapat Umum or RDPU, or collaborate with various committees (special committee or panitia khusus, or working committee or panitia kerja) formed by the parliament.
- Mobilising protest actions through various channels such as demonstrations, petitions, and other means are aimed at influencing public opinion to pressure parliament.
There are certainly some successes of CSOs in influencing parliament in Indonesia, usually in the form of successful technical changes to articles of draft legislation to make them better serve the public interest. Also, major protest action involving CSOs has resulted in a temporary delay in the passing of a controversial bill by parliament.
However, reflecting on the past few years of problematic legislation, these small victories of are clearly insufficient to ensure responsible law-making. Despite strong opposition from civil society, the continued passage of problematic legislation demonstrates the lack of bargaining power civil society has on the Indonesian parliament.
Civil society’s weak political capacity today results in large part from the legacy of repression during President Soeharto’s authoritarian regime which left deep wounds. Indonesian civil society was weakened and disorganised due to the mass depoliticisation and demobilisation carried out by his New Order regime. Moreover, under Jokowi’s leadership, the repression of civil society has become more apparent.
Reflecting on the complex problems above, it is clear that more than merely parliamentary institutional reforms is required. Fundamental and comprehensive political reform, including reforms to political parties’ institutions and workings, are needed. Furthermore, civil society organisations who advocate for democracy also face the challenge of the increasing phenomenon of ‘uncivil society’ that promotes anti-democratic interests.
Unfortunately, the government of newly-elected President Prabowo Subianto is likely to be a continuation of the Jokowi era and democratic regression will likely worsen. The oligarchy’s strong influence on Indonesian democracy and the lack of substantial opposition forces in parliament make it challenging to affect change. However, Indonesian civil society has shown itself to be resilient. While not always exclusively in favour of democracy, civil society still can be one of the fulcrums of hope in pushing for parliamentary transparency and public participation, even in challenging times.
Authors:
Eryanto Nugroho is a PhD candidate at Melbourne Law School. He is the Chair of the Indonesian Foundation for Law and Policy Studies (YSHK), which houses the leading legal think tank: the Indonesian Center for Law and Policy Studies (PSHK), and the pioneering Jentera School of Law.
Rizky Argama is the Executive Director at PSHK (Indonesian Centre for Law and Policy Studies) and lecturer at Indonesia Jentera School of Law.
Fajri Nursyamsi is the Deputy Executive Director at PSHK (Indonesian Centre for Law and Policy Studies) and lecturer at Indonesia Jentera School of Law.
Choris Satun Nikmah is the parliamentary reform division coordinator at the Indonesian Parliamentary Center.
Dipublikasikan oleh:
