New Pathways for Legislation in Indonesia

The government is confronted with a policy dilemma, and none of the options are truly comfortable. There is a recurring habit among lawmakers, both executive and legislative branches. When the public feels dissatisfied and potentially harmed by a law, they are urged to file a judicial review with the Constitutional Court (MK). State officials, without any reflective or preventive stance, deliberately turn the MK into a ‘rubbish bin’, as if their actions are correct and need no correction. If there is a mistake, just go straight to the MK, and let the MK test it. This makes the MK bear the brunt every time a problematic law is formed and is seen as not siding with the people. In reality, it is the government and the DPR that should be comprehensively evaluated. Without an evaluation process for law-making in parliament, the MK will forever remain a ‘rubbish bin’, and our legislative process will only worsen. Moreover, the dominance of oligarchic alliances in law-making is evident, so there should be constitutional efforts to break the practice of abusive legislation that impacts the decay of democracy and the fall of the rule of law. One preventive measure to prevent abusive legislation is to pursue it through a preview mechanism in parliament. OUTDATED PRACTICE OF JUDICIAL REVIEW AT THE MK The judicial review process run by the MK so far has various notes and evaluations. The nature of judicial review by the MK is limited to testing constitutionality. The MK is not authorised to examine the quality of legislative methodology used to measure the normative substance in laws. Judicial review in Indonesia is often called post facto, meaning what the MK tests is not a draft law, but a law that has already been promulgated. Additionally, testing at the MK can only be done if there is an application submitted due to harm arising from the enforcement of that law. The applicant must prove the existence of causality and constitutional harm as the legal standing of the applicant. Moreover, the time span between the promulgation of a law and the application for testing at the MK can be very relative, either long or short, depending on when the application enters the MK. For example, the judicial review application for Law Number 6 of 2023 on the Establishment of the Job Creation Perppu into Law has been in effect for two years and has caused much harm to society. One of them relates to the ‘ease and acceleration of national strategic projects’. This is a result of poor, non-participatory legislative processes that are stubborn against input and criticism. If viewed over the last 10 years (2014-2024), the MK has examined 1,385 cases of law review applications. Clearly, this is not just a number, but also affirms the poor legislative process in parliament. At that point, the preview mechanism is important to be implemented in the law-making process before it is finally ratified and promulgated. NEW EFFORTS IN THE PREVIEW MECHANISM The paradigm of law testing is no longer just post facto, but must shift to ex ante, which is an effort to test draft laws before they are ratified into laws. In some literature, the preview mechanism in various countries has various terms, such as judicial preview, ex ante review, or preventive review. For example, in Finland, preview authority is given to a quasi-judicial body that is still part of parliament, not carried out by the judicial branch, such as the MK or Supreme Court. Therefore, it is called ex ante review because the corrective and evaluation process of draft laws is done in parliament. Similarly, in France, there is the Constitutional Committee (Conseil Constitutionnel) that conducts ex ante review. That committee is also not a judicial body, but a quasi-judicial institution. However, unlike Finland, in France, the mechanism is separate from parliament and is a standalone body. Different from Austria, they use the term judicial preview because it is done by a judicial body, namely the Constitutional Court. The Constitutional Court can decide whether a draft law proposed by each government organ is within their respective competence. The court’s decision will be announced in the state gazette (Federal Law Gazette) and has constitutional status. If the Constitutional Court holds that a draft law is unconstitutional, that draft law cannot be enforced. In Indonesia, both ex ante review and judicial preview are not yet accommodated in the law-making process. As per the stages of law-making in Law Number 13 of 2022 on the Second Amendment to Law Number 12 of 2011 on the Formation of Legislation, it is carried out through five stages: planning, drafting, discussion, ratification, and promulgation. The author is more inclined to advocate for the preview mechanism in law-making not to be within parliament and not in the judicial realm, but carried out by an independent quasi-judicial body overseeing law-making. The existence of a quasi-judicial body functioning to oversee the law-making process outside parliament, according to the author, has a strong basis: first, the process in parliament is inseparable from political interests, so the law-making process is often hijacked by business and political interests of oligarchs forming alliances. Second, that body becomes a counter-majoritarian detached from the hegemony of the majority that forms the basis for decision-making on law-making. Third, the law-making process in parliament lacks participation.