Hyperegulated society and its discontents

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.