By: TW Deora and Erlangga Pratama )*
The need for regulatory reform ideas began to emerge when legal scholars gathered in Rancamaya, Bogor in October 2016. Legal scholars admitted they were concerned about the tens of thousands of regulations that caused problems here and there. Then, President Joko Widodo (Jokowi) said that regulations in Indonesia are complex and complicated so as to hamper development acceleration. It turns out that not only at the central level, the complexity at the regional level is no less complicated. “So far, Perda products have also become a source of chaotic legislation in Indonesia. Especially the unsynchronization between Perda on the same issue, causing legal uncertainty, hampering investment and human rights violations. That is why in the formation of the National Legislation Center (PLN) which is placed in a separate Ministry. “The president needs to involve the Ministry of Home Affairs. Especially the Directorate that handles law and fostering regional regulations,” said the state administration law expert at the Faculty of Law, Sebelas Maret University Surakarta (FH UNS) Agus Riewanto to AFP on Tuesday (8/20/2019).
Based on the records of the Association of State Law Teachers, there are at least approximately 62 thousand regulations in Indonesia. In a span of 15 years, from 2000 to 2015, the regulations that were created at both the central and regional levels reached 12,500. For a country that is not yet 100 years old, that number is fantastic.
Institutions that have been created specifically to solve the problem of overlapping regulations have been found in many countries. In Japan, for example, there is a Cabinet Legislation Bureau (CLB). In South Korea, appeared Ministry of Government Legislation. Then in the US, there is The Office Information and Regulatory Affairs (OIRA). And in Britain, stands the Office of Best Practice Regulation (OBPR).
Similar scenes also emerge in Indonesia. Long before the two candidates put forward their discourse to create a new institution, the government actually already had an institution tasked with tidying up the complexity of the rule of law in Indonesia. The institution is the Directorate General of Legislation and the National Legal Development Agency (BPHN) – both of which are directly under the management of the Ministry of Law and Human Rights.
The large number of these rules makes the World Bank, in 2016, put Indonesia in the 109th position — out of 193 countries — in the regulatory quality index. Indonesia’s ranking is lower compared to several other ASEAN countries such as Malaysia (18), Vietnam (90), and Singapore (1). This position can be read as a portrait of poor regulatory management in Indonesia. The government is actually not silent. To break the overlapping chain of rules, in the past two years, the Ministry of Home Affairs has abolished 1,876 Regional Head Regulations and Minister of Home Affairs Regulations. While the Ministry of Law and Human Rights is trying to form a special team to deal with this cross-dispute, despite the legal umbrella.
In 2016, the Minister of the Interior (Mendagri) Tjahjo Kumolo once canceled 3,143 problematic local regulations. The purpose of the cancellation of the perda is to strengthen the nation’s competitiveness in the era of competition. The regulation is considered to hamper regional economic growth and extend bureaucratic pathways, hamper investment, and ease of doing business.
Problems become worse when the Constitutional Court (MK) revokes the authority of the Ministry of Home Affairs to repeal problematic laws. The decision made in June 2017 further extended the chain of cutting legal obesity, because the problematic regional regulation must be resolved in the Supreme Court (MA) through a judicial review process.
The problem becomes complicated because the Constitutional Court’s ruling impedes executive space to conduct development. Therefore, Jokowi must include HR from the Ministry of Home Affairs to be able to re-audit regional regulations and problematic regulations in the regions.
The root of the problem of overregulation – so that overlaps arise – in Indonesia lies the many regulations that are of the type and hierarchy under the Act, in this case ministerial-level regulations. Notes Nasir Djamil, member of Commission III of the DPR, in the range 2000 to 2015, there were around 8,311 ministerial-level regulations out of a total of 12,500 rules issued.
Viewed legally, the formation of ministerial regulations is based on Article 8 of Law no. 12/12. With the power to form regulations that are so open, the material contained in ministerial regulations may even go outside the boundaries because it ignores the principle of forming legislation. As a result, legal certainty in the administration of government is increasingly difficult to obtain.
Saldi Isra, professor of Constitutional Law and Director of the Center for Constitutional Studies at the Andalas University Faculty of Law, in an article titled “Streamlining Regulations” (2017) published in Kompas said that one of the causes of legal uncertainty was the condition in which the formation of ministerial regulations did not go through the harmonization process as appropriate the stage of forming government regulations and Perpres.
Because of this, it is clear that Isra, both vertically and horizontally, substantively, ministerial regulations are very likely to present regulations that are not harmonious and out of sync with the types and hierarchies of other laws and regulations, including conflicting with the law.
When the number of uncontrolled regulations becomes the main problem that must be resolved, the first step that must be taken is to find the form and source of regulation that causes overregulation, rather than being limited to focusing on establishing a new institution that carries the jargon of “efficiency and effectiveness through the door”. Without correctly detecting these forms and sources, efforts to streamline regulations have the potential to worsen the situation.
In his article entitled “Interpreting the Constitution in Legislative Politics” (PDF, 2017), Commissioner of the Republic of Indonesia Prosecutors’ Commission, Barita Simanjuntak, revealed that the problem of overlapping regulations will not occur as long as legal politics in Indonesia is carried out in an orderly manner.
There are at least two ways that can be taken to stop the problem of overlapping rules. First, apply the legal principle firmly and consistently. The Principle of Legal Certainty, for example, can be applied to sort out which should be used and which should be discarded when two conflicting rules emerge.
However, reducing regulations in Indonesia is one of the work priorities of President Jokowi’s vision and mission in his second period, because the Solo man was well aware that the success of reducing regulations would accelerate economic transformation, and the investment and economic rate would be more shiny if followed by streamlining bureaucracy or trimming echelonization especially echelon 3 and 4.
There is no other way, all of this must be carried out and there must be no argument, excuse or rejection of the “President’s order”. Streamlining regulations and reducing bureaucratic echelonization is a necessity that must and must be done to accelerate the transformation of the Indonesian economy.
*) Bureaucracy and economic observers.