The End of the Beginning of Abusive Constitutional Borrowing in Indonesia: On the Suspension Order of the Omnibus Law of Job Creation

–Stefanus Hendrianto – Pontifical Gregorian University

In recent months, one of the hot topics in Indonesian constitutional politics is the Indonesian Constitutional Court decision to issue a suspension order with two years deadline on the constitutionality of Law No. 11 of 2020 on Job Creation, commonly known as the Omnibus Law of the Job Creation.[1] The Court ordered the lawmakers to revise the Omnibus Law of Job Creation within two years; otherwise, it will be deemed unconstitutional. As usual, many local legal analysts and scholars have commented on the decision; while most of them have mistakenly criticized the suspension order, they have also missed seeing the crux of the matter in the Omnibus Law of Job Creation and the Court’s decision, which is the practice of abusive constitutional borrowing.

Omnibus Law of Job Creation and Abusive Constitutional Borrowing

In recent years, the literature of comparative constitutional law has highlighted the notion of abusive constitutional borrowing. The architects of this legal construct are Rosalind Dixon and David Landau, who posit that there is a phenomenon in which leaders in new democracies are shifting away from an authentic engagement with liberal democratic norms and toward an abusive engagement.[2] This abusive engagement aims to use ideas and norms from western liberal democracy to carry out anti-democratic constitutional change. The bottom line is that some leaders borrow something from the West to advance their anti-democratic agenda.

The Indonesian President, Joko Widodo (commonly known as Jokowi), has made a big step to join the club by borrowing the concept of omnibus laws from the West to carry out a process of constitutional change that has an anti-democratic character. During his inaugural speech on October 20, 2019, Jokowi announced his plans to revise “dozens of laws that inhibit job creation” into an efficient Omnibus Law for his second presidential term.[3] Sofyan Djalil, the Minister of Agrarian and Spatial Planning, initially proposed the idea of an Omnibus Law to Jokowi. Djalil claims that he drew inspiration from the Omnibus legislation that the U.S Congress routinely uses.[4]

While there is no single definition of omnibus legislation in the U.S., there is general agreement that “legislation that packages together several measures into one or combines diverse subjects into a single bill fits the label” of omnibus legislation.[5] The Indonesian Parliament tried to copy the omnibus legislation model by passing a massive bill on Job Creation on October 6, 2020, which amended 78 laws and repealed one Law, with the final result of 1187 pages of legislation.

The passing of the Omnibus Law of Job Creation has accomplished an anti-democratic agenda of the Jokowi administration. First, by legislating through the Omnibus bill, the Jokowi administration maintained a relative amount of secrecy over what goes into the bills.[6] Next, the Parliament expedited the vote of the bill; the bill was submitted to Parliament on February 12^th, 2020, and it was voted on October 5^th, 2020. The Parliament argued that it expedited the deliberation process because of the Covid-19 pandemic. But the Covid 19 outbreak provided an excuse for the Parliament to sidestep public scrutinies, such as hearing many witnesses about the effect of the proposed bills to issue such as environmental and indigenous rights.

The Omnibus Law of Job Creation has also proven anti-democratic in substance. Many plantations, mining, and forestry regulations have been rolled back through the Omnibus bill. These substantive changes have ensured that the conglomerates can accumulate resources in the plantation, mining, and forestry commodity sectors.[7] For instance, the Law removes the provisions on forest area boundaries that must be maintained at a minimum of 30% from river basins. In the absence of a minimum limit of forest areas to be preserved, the Law will encourage uncontrolled business activities to exploit natural resources in the so-called “strategic forestry area.”[8] Moreover, the environmental cluster of the omnibus bill also makes it easier for the conglomerates to exploit and control land with little democratic accountability. The Omnibus Law changed the requirement of environmental permits into “environmental consent” and scrapped the administrative complaint mechanism.[9]

In sum, the Omnibus bill of Job Creation have been deployed to dismantle democratic accountability mechanisms in Parliament and Indonesian society covertly. In addition, the Jokowi administration employed heavy-handed repression of the protest of October 2020, along with the delegitimization of the protest in the mass media, which eventually crushed the opposition to the bills.[10] The online criticism of the Omnibus Law was also deterred through a concerted strategy of cyber-surveillance and the deployment of cyber-troops.[11]

The Constitutional Court’s Decision on the Omnibus Law of Job Creation

A little over a year after the Government passed the Omnibus Law of Job Creation, the Constitutional Court issued a decision, which declared that the Law is “conditionally unconstitutional”. In a 5-4 decision, the Court issued a suspension order that the Law and its implementing regulations will remain in effect in the next two years, unless the Government successfully revisits and amends the procedural flaws in the Law, otherwise, the Law will be deemed unconstitutional.[12]

Interestingly, the Court majority ruled that the Omnibus Law is “conditionally unconstitutional” because of its procedural flaws, and, therefore, the Government must ensure that issues of procedural flaws in the Omnibus Law can be addressed within the next two years. Concerning the procedural flaws, the Court majority focused on several issues, such as the lack of clarity on the nature of the Law, whether it is a new law or a law that intended to amend previous laws.[13]   The Court also highlighted the secrecy around the bill’s academic draft (naskah akademik), and the minimal public participation in discussing the bill.[14] 

The Court majority ruled that it will not review the substance of the Law, but rather will defer to the legislature to undertake such a review based on the public criticism or objection from the claimants in the Court proceedings.[15]  Moreover, the majority opined that the Court could understand the Government’s decision to use omnibus legislation to accelerate foreign direct investment and expand labor opportunities in the country.[16]  In other words, the method of borrowing of omnibus legislation itself is not a matter to be reviewed by the Court.

Interestingly, the dissenting opinions are much more conservative than the majority opinion. Chief Justice Anwar Usman and former Chief Justice Arief Hidayat issued a dissenting opinion. They concurred with the Government’s argument that the Omnibus Law is necessary to attract investment by simplifying bureaucracy and guaranteeing legal protection for the investor. Thus, they believe that the Court must validate the Omnibus legislation.[17] In the meantime, Justice Mahanan Sitompul and Justice Daniel Yusmic issued a separate dissenting opinion, in which they argued that there is no reason for the Court’s majority to invalidate the Omnibus Law on the procedural ground because the Parliament had discussed the Omnibus Bill publicly, and the Parliament had invited public participation to discuss the bill. [18]

After the Court issued the decision, many legal academic and analysts criticized the suspension order; for instance, former Deputy Minister of Justice Denny Indrayana argues that it does not make sense for the Court to allow the Omnibus Law to remain valid in the next two years while the Parliament is addressing the procedural flaws in the enactment of the Law.[19] These criticisms had missed seeing the real issue in the Court’s decision. There is nothing new under the sun with the suspension order; the Indonesian Constitutional Court has issued some suspension orders in the past.[20] But the crux of the matter, in this case, is the practice of abusive constitutional borrowing through the concept of an Omnibus Law. Unfortunately, the Court majority did not want to address whether the omnibus method is anti-democratic in substance and form. At the same time, the dissents bluntly gave their blessings for the Government to borrow omnibus legislation.

In the future, the Jokowi administration has planned to prepare several omnibus bills, such as the bill on Tax and Economic Reform.[21] Presumably, the Government will continue to employ omnibus bills to roll back many regulations, privatize public projects, tax reforms, etc. These anti-democratic bills will likely restructure Indonesian politics and society by ensuring that the wealthy are able to accumulate resources with little accountability. If that is the case, then the Court’s decision on the Omnibus Law of Job Creation is only the end of the beginning of abusive constitutional borrowing in Indonesia.

Suggested citation: Stefanus Hendrianto, The End of the Beginning of Abusive Constitutional Borrowing in Indonesia: On the Suspension Order of the Omnibus Law of Job Creation, Int’l J. Const. L. Blog, Feb. 12, 2022, at: http://www.iconnectblog.com/2022/02/the-end-of-the-beginning-of-abusive-constitutional-borrowing-in-indonesia-on-the-suspension-order-of-the-omnibus-law-of-job-creation/

[1] The Constitutional Court Decision No. 91/PUU-XVIII/2020 (hereinafter the Omnibus Law case) – the Court issued the decision on November 25^th, 2021.

[2] Rosalind Dixon and David Landau, Abusive constitutional borrowing: legal globalization and the subversion of liberal democracy (Oxford, United Kingdom : Oxford University Press, 2021).

[3] The Jakarta Post, “Jokowi Pushes for Passage of Omnibus Laws: What Are They?”, October 25, 2019, https://www.thejakartapost.com/news/2019/10/25/jokowi-pushes-passage-omnibus-laws-what-are-they.html.

[4] Kompas.com, “Luhut: Istilah Omnibus Law Dikenalkan oleh Sofyan Djalil” October 12, 2020, https://nasional.kompas.com/read/2020/10/12/17010251/luhut-istilah-omnibus-law-dikenalkan-oleh-sofyan-djalil

[5] See Abbe R. Gluck, “Unorthodox Lawmaking and Legislative Complexity in American Statutory Interpretation,” in Ittai Bar-Siman-Tov (editor), Comparative multidisciplinary perspectives on omnibus legislation. (Cham: Springer, 2021).

[6] Rizky Argama, “Major procedural flaws mar the omnibus law,” Indonesia At Melbourne, October 9, 2020, at http://indonesiaatmelbourne.unimelb.edu.au/major-procedural-flaws-mar-the-omnibus-law/.

[7] Aulia Nastiti, “Why Indonesia’s omnibus bill will not create jobs and only strengthen the oligarchy,” The Conversation, Oct 20, 2020. https://theconversation.com/why-indonesias-omnibus-bill-will-not-create-jobs-and-only-strengthen-the-oligarchy-147997

[8] Sri Wiyanti Eddyono (eds), ‘Kertas Kebijakan: Catatan Kritis Terhadap UU No. 11 Tahun 2020 tentang Cipta Kerja’ (A Critical Note to Law No. 11 of 2020 on Job Creation, Faculty of Law Gadjah Mada University, 5 November 2020), p. 32-36.

[9] Ibid., p. 37-40.

[10] Sandi Sidhu and Philip Wang, “Hundreds arrested at protests over labor law in Jakarta,” CNN.com, Oct 9, 2020. https://edition.cnn.com/2020/10/08/asia/jakarta-indonesia-protest-jobs-law-intl/index.html

[11] Yatun Sastramidjaja and Pradipa P. Rasidi, “The Hashtag Battle over Indonesia’s Omnibus Law: From Digital Resistance to Cyber-Control” ISEAS Perspective Vo. 95/2021. July 21, 2021, at https://www.iseas.edu.sg/articles-commentaries/iseas-perspective/2021-95-the-hashtag-battle-over-indonesias-omnibus-law-from-digital-resistance-to-cyber-control-by-yatun-sastramidjaja-and-pradipa-p-rasidi/.

[12] The Omnibus Law case, para. 3.20.3.

[13] Ibid., para. 3.18.1.5

[14] Ibid., para. 3.18.4

[15] Ibid., para. 3.21

[16] Ibid., para. 3.20.1

[17] Ibid., para. 6.1.5. & 6.1.8 (Anwar Usman and Arief Hidayat dissents)

[18] Ibid., para. 6.2. (Manahan Sitompul and Daniel Yusmic dissent)

[19] Denny Indrayana, 5 Ambiguitas Putusan MK Soal Uji Materi UU Cipta Kerja (Five Ambiguity of the Constitutional Court Decision on Omnibus Law on Job Creation), Tempo.co. November 28, 2001. https://nasional.tempo.co/read/1533344/denny-indrayana-5-ambiguitas-putusan-mk-soal-uji-materi-uu-cipta-kerja

[20] For a more detailed analysis of the Suspension Order in the Indonesian Constitutional Court, please see Stefanus Hendrianto, “Back to the Future: On Prospective Invalidation in the Indonesian Constitutional Court” in Constitutional Remedies in Asia, edited by Yap Po Jen (Routledge, 2019). Available at  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3828715

[21] Apart from this bill, the Government has also prepared the omnibus bill on cyber security and the omnibus bill on the pharmaceutical industry. Nevertheless, it is unclear to what extent those bills will fall under the category of an omnibus bill. In addition, the Jokowi administration recently passed a new law on the Relocation of the Indonesian Capital, which they also claimed as a new Omnibus Law.