X. Final Reflections
Final Reflections
I am in America, but my mind is still very much in Indonesia. And I suspect part of it will be for a while!
I’m still collaborating with friends from PUSaKO on their journal articles and research, offering my feedback and proofreading for English language publications. I turned in my research on regulatory impact analysis but would still like to give an online lecture to the research team on my findings.
Lawmaking (Again)
There were labor movement protests in Jakarta last week about the omnibus Job Creation law, which I have been following and analyzing this summer. I have mostly been tracking legal avenues for challenging the Job Creation law in the Constitutional Court. The Constitutional Court held that the first iteration of the Job Creation law was procedurally defective and provisionally unconstitutional in November 2020. Instead of taking the opportunity to revise the law following the steps of the Law on Lawmaking, Law No. 12 of 2011, the government instead issued an emergency regulation in lieu of law (Perppu) basically effectuating its many provisions, citing the pandemic economic fallout as an emergency justification, and then the DPR stipulated it into law in March with Law No. 6 of 2023.
The emergency justification is questionable to me. President Jokowi declared during his second inauguration as early as 2019 that the Job Creation law was a priority for his administration. The drafting process started immediately, well before anyone anticipated a pandemic or economic recession. Then the government regulation in lieu of law was not issued until over a year after the Constitutional Court’s November 2020 decision, well into the two-year deadline given by the Court for fixing the law. The Constitutional Court is currently pending decision on petitions on whether this all conformed to the lawmaking principles in the Constitution and corresponding statutory guidelines. While I was at the Constitutional Court, I had the opportunity to watch a hearing with some of the petitioners and the government during which the Court sought evidence and testimony. I am looking forward to reading the opinion.
I was reflecting on the comparison between this whole process and the now abandoned Build Back Better agenda, shot down by Senator Joe Manchin and morphed into the more limited Inflation Reduction Act of August 2022. Certainly, the Biden Administration offered Build Back Better as a response to the post-pandemic economic crisis. Although you might also say that it was drafted very broadly as a response to that situation, bringing in a whole laundry list of Democratic policy proposals through the budget reconciliation process that were already languishing for years before the pandemic.
I had some problems with it as a basically leftish person on board with the goals of poverty reduction and social welfare, mostly because I have a lot of scruples about the wisdom of means testing. For example, a paid family leave proposal was part of the Build Back Better agenda. Family leave was conceived of as a hybrid program including a complex of employer-provided paid leave insurance, state paid leave programs, and a gap-filling federal program. Eligibility included several confusing work history requirements, which ultimately would have excluded many of the poorest mothers from the program. I had concerns with withholding benefits for the poorest parents and making everybody’s benefits dependent on frustrating layers of paperwork and insurance selected by their employer. Why involve the private insurance companies at all? Is there a reason not to just direct everything though the Social Security Administration?
Procedurally, I have more and related issues how this happened. How do the elements of a paid leave proposal get into the one big omnibus bill that Congress is going to try to pass to deal with a whole host of social problems in one stroke? Some marginalized welfare policy commentators have issues with the substance of the proposal and think they can do better. Is anybody required to listen to them, conduct polling, hold stakeholder sessions, and respond in the legislative record to criticisms? My impression is that you get things into a bill if you have a connection to leaders and their staff on influential Congressional Committees, such as if you are poweful think tank supported by major party donors. There is a patronage network that greases the wheels of policymaking here.
Basically, this is a problem of the narrow scope of Washington policy-making circles, the role of special interests ostensibly bridging the relationship between legislators and their constituents, the role of political parties, and how to involve people more widely and meaningfully in the process. Mostly we have seemed to normalize a lot of these “omnibus” features of the legislative cycle. Namely, we see legislation touching many substantive policy areas consolidated in mammoth bills considered with abbreviated debate and amended right up to the date they are passed.
This normalization does not seem to be the case in Indonesia (yet), which was kind of a wake-up call to me. Workers and environmentalists are very alarmed about being sidelined from a discursive legislative process and are upholding, as a separate matter from the substance of laws, Article I of the Constitution ("The State of Indonesia is a state based on law"), Article 22A ("Further provisions regarding the procedures for the enactment of laws shall be regulated by laws"), and the principles of lawmaking in Article 5 of the Lawmaking Law No. 12/2011: clear purpose; proper authority; match between types, hierarchy, and content; ease of implementation; versatility; clear formulation; and openness. Article 96 of Law 12/2011 provides that the DPR must solicit public feedback on draft proposals through public hearings, working visits, focus groups, seminars, and discussions. Public citizens have the tool of judicial review of procedural errors in this lawmaking process.
Meanwhile, on the secondary and administrative law side of things, I found some things to admire in American regulatory processes. First, just having a searchable and updated public database of existing and proposed regulations is hugely important. The regulations.gov site (compiling information mostly from the Federal Register) and European Union “Have Your Say” portal really are excellent tools for familiarizing an interested person with what agencies are doing. Putting aside all the other principles of evidence-based public management that have been promoted and institutionalized in the US, Europe, and other places over the years, this is really the first thing that I would prioritize, since much else rests on the access of the public to regulation. You can have a lot of strong guidelines for how agencies are supposed to shape regulation, but something is missing if the public cannot easily see your work or your justifications.
Notes of Appreciation
I feel like I have done a lot of rambling about my exposure to legal systems in this blog with some digressions into history that hopefully added some perspective. Not that I apologize for that. It is basically what I promised in my first post.
With these last paragraphs though, I would like to talk more about, and give my gratitude to, the people who shared these experiences with me and helped as my guides in Indonesia. First, the experts and researchers at PUSaKO who made me feel very welcome in an unfamiliar country. I already miss having morning soto with everyone at the conference table, sharing excited discussions about our legal systems and research, giving my lectures about criminal law and constitutional law, driving to Bukittingi for the municipal rulemaking workshop, participating together in the election workshop, conversing about environmental issues with guests doing critical advocacy, hearing all their tips on things to eat (and maybe not eat), places to visit, and exploring each other’s cultural understandings. I hope that we have only just started our collaborations together.
Second, the Constitutional Court, Mr. Pan Mohamad Faiz, the staff of the Central Research Division,
especially Ms. Titis Anindyajati who helped greatly as my guide and facilitator. I feel privileged to have been able to see all the inner workings of the Court, meeting with dozens of staff in the bureaus who eagerly and patiently answered my many curiosities. I was also able to join them on very edifying courtesy visits to the Human Rights Commission and the Corruption Eradication Commission and join them on a trip to the Dunia Fantasi. I was honored to present with esteemed scholars at the Indonesian Constitutional Court International Symposium.
I feel like I am leaving a lot behind in Indonesia. More collaborations, more meetings, more tea sessions, more evenings drinking coconut milk and watching the sunset over the Indian Ocean. But I have been away from Williamsburg for a long time and am looking forward to starting classes with fresh eyes.