UNPAK - The public space in the last two months has been noisy about Omnibus Law. Like a magic spell: rumored in a coffee shop. So the campus discussion trends. Of course sneaking also on the sidelines of the Parliament Building Senayan.
Pros and cons become a risk because the choice of reform is democracy.
One of the most controversial in the public is the Employment Copyright Omnibus Bill. Why is it controversial?
First, dozens of laws were revised in certain articles.
Second, the polemic varies from labor, ecology to central and regional relations.
Third, the alleged serious implications in various directions include the alleged threat of democracy and regional autonomy.
The idea of Omnibus Law
What is Omnibus Law?
In the perspective of the FHUI Professor, Maria Farida Indrati, omnibus (latin) means all or everything. Of course, the term omnibus law means law for all or everything.
For Maria, from the various formulations of the omnibus definition, she chose the notion of "one (new) law containing or regulating various kinds of substances and various subjects for the simplification of several existing laws". (Maria Farida, Opinion, Kompas 01/04/2020: 6).
The Omnibus Law itself is common in common law countries and is less well known in civil law system countries such as Indonesia.
In Law Number 12 of 2011 concerning Laws and Regulations, there are no explicit norms that can be interpreted and identified as omnibus law models.
The initial idea of the omnibus law was actually from the disappointment of President Joko Widodo (Jokowi). Indonesia is approaching minimal investment. Whereas investment in economic lubricants. Especially in the era of the digital economy.
Jokowi's prediction, the law allegedly makes investment unattractive. Regulation overlaps. A complicated bureaucracy. When taking care of licensing snaking. Regulatory obesity has a serious impact. The implication is serious.
First, weak investment competitiveness (Ease of Doing Business / EoDB) and private sector growth.
For example, in the area of EODB business ease released by the World Bank, Indonesia ranked 73 out of 190 countries.
In this report in 2019, Indonesia's position was recorded down one rank compared to the previous year even though the index achieved by the government rose 1.42 to 67.96.
Of the 10 indicators assessed by the World Bank in the period June 2017 to May 2018, Indonesia recorded a decline in four areas, namely dealing with construction permits, protecting minority investors, trading across borders, enforcing contracts.
Second, opening up opportunities for corruption. According to the Corruption Eradication Commission (KPK), licensing corruption is still an easy area for regional officials' corruption.
Of the 105 regional heads whose cases are being handled by the KPK, 60 of them are involved in bribery cases, while the rest are related to cases that harm state finances, gratuities, and extortion.
Licensing issues are considered often a stumbling block for regional heads.
From the two points above, it seems that President Jokowi believes, only the Omnibus Law bill can reduce the problem of obesity regulation and licensing.
The President's confidence can be easily understood by the writer. Because, after the reformation, every institution, both central and regional, can easily produce regulations.
In addition, with the high-cost direct election model, licensing sales are no longer a public secret. There was a transactional politics in the region by the elements of the regional head as the KPK affirmed above.
Therefore, the pragmatic and rational choice of President Jokowi in this context is to deregulate permits and regulations through the Omnibus Law Bill model.
The complexity of the Omnibus Law
The problem is, the idea of Omnibus Law is like a wild ball because the concept of its boundaries has not yet been established.
For example, are we still committed to democracy and regional autonomy which are fought by the heroes of reform.
Because without it, the potential for Omnibus Law to undermine democracy and regional autonomy is always open.
From the draft Omnibus Law Bill, especially in its articles, the indications are intended to be so open. Like Article 62 of the Employment Bill that regulates changes to Law Number 36 Year 2009 regarding Health.
The article states, the licensing attempt to establish all health service facilities is the authority of the central government. Local government no longer has.
So, even the community health center (puskesmas), the center that gives the permit. So, is this likely to hurt the concept of regional autonomy?
In addition, the licensing model is changed to a licensing model based on the criteria for low risk business activities (sufficient to provide a Master Number), medium (in addition to the Business Identification Number also equipped with a Standard Certificate), and high (using a permit other than a Business Identification Number) (Article 9- 11).
In this context, what needs to be ensured is the accuracy in determining the risk. Because, this is related to environmental guarantees and future sustainability. If for the sake of investment, the ecological dimension is set aside, it is not impossible that this nation will become extinct.
Not to mention the controversy over Government Regulations (PP) that can shift the Law (Law) (Article 170) which invites polemics between Ministers, both the Coordinating Minister for the Economy and the Coordinating Minister for Politics, Law and Law and Law.
Inter-ministerial polemics should be taboo in policies that have been made public.
Moreover, in terms of law it is clear, Indonesia adheres to the legal hierarchy as adopted by Law No. 12 of 2011 concerning the Formation of Legislation so that something that should be impossible: PP defeats the Act.
The ball is in the hands of the DPR
Now the public hopes to be worried. How does the House of Representatives (DPR) respond to the chaotic chaos of the Omnibus Law Bill.
The public wants, the DPR as an authentic representative of the people, (not cans), must be able to increase the optimization of public participation. Because, with public participation, the degree of legitimacy of the law can be guaranteed.
There is an old book from Arief Budiman entitled Theory of the State (Gramedia, 1996) which can be a signal to measure whether democracy is dim or not.
According to Arief, the doctrine of state neutrality needs to be criticized. Because, according to Ralph Milliband's theory, if not careful, the state becomes merely a tool to serve the dominant class, not the public interest. The dominant class influences through personal relations between the dominant class and state officials (p.70). This should definitely be avoided.
In this context, it is worth arguing about the accusation of the President of the Confederation of Indonesian Trade Unions that states that the Omnibus Cipta Karya Bill does not involve laborers. Only entrepreneurs.
Parliament must maintain the balance of the parties maintained. If necessary, the DPR corrects whether the government is judged or suspected to be unfair on all parties.
A large mandate is hung on the House of Representatives to ensure that the principles of the rule of law, democracy and regional autonomy are not revoked.
Because, this extraordinary struggle. The public must escort so that the DPR can be active in its destiny to "attach bodies" to its voters.
Author: Raden Muhammad Mihradi, S.H., M.H.
Dean of the Faculty of Law of Pakuan University. Staff Committee III DPD RI
Editor: Editor : Heru MargiantoDownload full storyOmnibus Law