Public participation in the process of making primary legislation
Legislation can be categorised in many ways. One useful distinction is between primary legislation (made by Parliament) and secondary legislation (made by other persons or bodies, under the authority of primary legislation).
The differences between the two are apparent in several respects, one of which is the process for public consulation at the time of making or review. Requirements for public consultation in the making or review of primary legislation are not common, and certainly are much less common than for secondary legislation.
One reason for this, we think, is that economists have not become involved. Much of the process applying to secondary legislation, by contrast, is related to identification of costs, benefits and alternatives. This is for the purposes of regulatory impact analysis, intended by economists to bring about a reduction of the regulatory burden imposed on businesses and others.
The 2004 Act and its supporting regulations
One procedural requirement that has applied to to primary legislation was section 53 of the Indonesian Law on Making Laws 2004, which provided—
“The public has the right to make submissions, orally or in writing, in the preparation of Bills for the Central Government and Local Government.”
This is an important statement of principle. Certainly the provision lacks detail, but it is to be remembered that Indonesian Acts are often expressed at a quite conceptual level.
Provision for dealing with the outcome of public consultation was made in Presidential Regulation 68 of 2005, which stipulated that the results of public consultation were to be considered by an interdepartmental committee (article 13). If government agencies participating in the committee process could not come to an agreement for the finalisation of the Bill the issue was to be referred to the President for decision (article 17).
The 2011 Act
The Indonesian National Parliament (DPR) has recently enacted a replacement Law on Making Laws, 2011. As with the 2004 Act it contains the principle of public participation in making national Acts, but it incorporates a number of changes (section 96 of the 2011 Act)—
- it applies only to Bills for Acts at the national level (RUUs). As with section 53 of the 2004 Act it does not extend to secondary legislation (the most important of which are Government Regulations – peraturan pemerintah). Bills for local laws have been omitted from the scope of the section;
- it contains a listing of forums in which public submissions are to be considered (public hearings, working parties, seminars and discussions). The opportunity has not been taken, however, to make provision for how consultation is to take place, for example setting out the circumstances in which one forum might be suitable and another not, nor is there any indication of who is to conduct the process and when it should occur. These issues are interrelated — some forms of consultation are often appropriate at an early stage (when options are being canvassed), while other forms are appropriate at a later stage when consensus is being developed around a proposal. The generality of this provision contrasts with specific requirements which are often imposed in relation to regulatory impact analysis for secondary legislation;
- it elaborates on the concept of the “public” (sub-section (3)) by specifying that persons and groups falling within the concept of the public are stakeholders – those who have an interest in the proposal. The explanatory memorandum to the Act comments that the persons referred to in sub-section (3) include community and professional organisations, government organisations and indigenous people;
- it provides that, to facilitate public participation, Bills should be made accessible to members of the public.
As with any legislative reform, there are areas in which more could be done. Still, it is pleasing to see that the principle of public participation has been retained. It is also pleasing to see statutory recognition of the stakeholder concept, in preference to reliance on opinion leaders and technical experts.
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