Hyperegulated society and its discontents

Mohamad Mova Al 'Afghani, Jakarta

The recent National Legislation Program (Prolegnas) meeting listed 83 draft laws to be enacted in the year 2006 and 53 draft laws for the year 2007-2009. Interestingly, plenty of these draft laws refers to non-substantive issues.

Since 1999, there has been a trend toward "regulating everything". Creating plenty of laws, or Undang-Undang, which is regarded as some sort of achievement and thus, promotes a step toward a modern and sophisticated society.

What went wrong with this paradigm is judging the modernity of a society by the number of regulations it creates. Laws can be plenty, but the question is, will enacting more laws guarantee compliance? The more important question that should be raised is, do we actually need those laws? Will those laws benefit the society if enacted?

Indonesia's legal system recognizes the hierarchy of rules ranging from the Constitution, laws and Government Regulations in lieu of Law (Perpu), followed by Implementing Regulations that consist of Government Regulations (Peraturan Pemerintah), Presidential Regulations (Perpres) and Regional Bylaws (Perda). There have been around 8,000 such regulations in recent years.

That figure still excludes bilateral treaties to which Indonesia is a party and sectoral regulations. A note must be taken that in the wake of decentralization, local administrations will enact regulations more often. If there are 400 regencies and municipalities in Indonesia and each of them creates 10 regional regulations per year, then there might be an additional 4,000 or so regulations per year.

We should not be proud of merely enacting so many laws. Every creation of a new law -- irrespective of its forms -- is basically limiting human liberty, as what is previously unregulated becomes regulated and restricted. Today, we find that everything that can be regulated will be regulated.

If the Prolegnas goes as planned, we will have laws on Agrarian Resources, Land Rights, Mass Organization, Auctions, a Fishery Court, Postal Service, Technological Audit, Trade, Nurse Practices, National Heroes, Pharmacy Practices, Protection of Personal Data and Riverbanks, just to name a few. Perhaps in 30 years, the question will no longer be "what is the regulation", but, "what is still not regulated".

What kind of society wishes everything to be regulated? This question can only be answered by sociologists and social psychologists, but, what can be inferred from this phenomenon is that there is a tendency that assumes that legal certainty and social justice will be realized if the rules are written on paper.

Writing and defining things on paper does not ensure social justice. The more something is defined, the more loopholes it creates. One does not need to study linguistics to know that words will be never be sufficient to describe reality. Laws attempt to limit an understanding through its provisions but what it fails to describe becomes a loophole for those who wish to bend the law.

Not only that, more laws mean more restrictions and more loopholes. More laws also mean more bureaucracy. New laws often create new social institutions, new "councils", new "boards" and new "committees". Existing laws have already created bodies such as the Indonesian Broadcasting Commission, the Truth and Reconciliation Commission, a National Water Resources Council and the Toll Road Regulatory Agency.

Let us not forget that these new bodies create implementing regulations and oftentimes, approve licenses too. These bodies also need funds to operate, these funds are allocated from the State Budget. So, more Laws also means more expenditures from the State Budget and more expenditures from the public, as licenses generally require "administrative fees".

The law is always one step behind scientific and technological improvements. This will eventually lead to the inefficiency of the House of Representative's work.

Also, more laws mean more distance from the people. Lay people generally do not understand legal technicalities and thus tend to be alienated from the Law itself. The happiest people, the ones that benefit the most, from hyperegulation are of course, the lawyers. More laws means more jobs for lawyers.

There are some possible solutions that can probably limit the negative effects of, or even prevent, hyperegulation.

First, the enactment of laws should only be permitted to address issues that are really urgent or to amend the existing laws that are deemed to be imperfect. Laws that are enacted should be broad and all-encompassing. Details can be left to Presidential Regulations (Presidential Regulations made as an attribution authority under Article 4 of the Constitution) or other Implementing Regulations.

In addition to that, the implementation of laws must be accompanied by publication of its preparatory work. Today, when we find ambiguous articles in a law, we look at its explanation. Unfortunately, the explanation oftentimes only states something like "sufficiently clear" and leaves us puzzled as to what the legislators really meant. To overcome this, The House's Secretariat General must prepare the travaux preparatoire (preparatory documentation during debates in the House in enacting laws) so that readers will be able to understand what has been discussed during the sessions. This will also be useful for judges as one method in interpreting the provision of the law.

Second, turn to the court. Let judges "make" Law, instead of only citing provisions of a code and decide on the sentencing. To answer legal questions, one will be required to have an adequate capacity for legal reasoning and understand the methods of legal interpretation.

To this extent, legal education needs to include interpretation theory into its curriculum. What must not be neglected is that the court is not only asked legal questions; in addition, it is supposed to determine what is just. Thus, the Court is supposed to answer ethical question that have completely different methods of reasoning compared to legal reasoning. Judges must then understand methods of ethical reasoning and implement game theories in their decisions, such as "the maximin rule".

The writer (movanet@yahoo.com) is a lawyer and a lecturer.