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Idea Transcript


The Habibie Center

Policy Research

Improving the Legislative Function of the House of Representatives Recommendations for Reducing Backlog of Legislation

Research Team: Aay Muh. Furkon Bawono Kumoro Inggrid Galuh Mustikawati Maya Thatcher

JAKARTA, MAY 2012

The Habibie Center

POLICY RESEARCH Improving the Legislative Function of the House of Representatives: Recommendations for Reducing Backlog of Legislation

RESEARCH TEAM: AAY MUH. FURKON BAWONO KUMORO INGGRID GALUH MUSTIKAWATI MAYA THATCHER

JAKARTA, MAY 2012

Graphic design: Aryati Dewi Hadin Copyright©The Habibie Center, 2012 Jl. Kemang Selatan, No.98 Jakarta 12560 Tlp. (021) 7817211, Fax. (021) 7817212

Table of Contents

TABLE OF CONTENTS TABLE OF CONTENTS LIST OF FIGURES AND TABLES ABBREVIATIONS ABSTRACT

iii iv v vii

CHAPTER I: INTRODUCTION I.1. Background I.2. Research Questions I.3. Research Objectives I.4. Research Methodology I.5. The Research Subject I.6. Research Benefits, Limitations, and Follow Up I.7. Literature Review I.7.1. Conceptual Framework I.7.1.1. Legal Basis for the Position of the House of Representatives I.7.1.2. Lawmaking Planning in Indonesia CHAPTER II: NATIONAL LEGISLATION PROGRAM OF THE 2009-2014 HOUSE OF REPRESENTATIVES CHAPTER III: POLICY RESEARCH FINDINGS CHAPTER IV: POLICY RECOMMENDATIONS BIBLIOGRAPHY LIST OF INTERVIEWEES LIST OF FOCUS GROUP DISCUSSIONS’ PARTICIPANTS RESEARCHERS’ BIOGRAPHY

1 1 5 6 6 9 12 13 20 24 28 41 55 67 76 80 81 82

iii

List of Figures and Tables

LIST OF FIGURES AND TABLES Figure 1 2005-2011 National Legislation Programs: Target vs Actual Figure 2 Outline of the Lawmaking Process Figure 3 Functions of the House of Representatives Figure 4 The Lawmaking Process Figure 5 The Center for Legal and Policy Studies’ Version of the Legislative Process Figure 6 The Preparation Process for Bills Initiated by the House of Representatives, Government, and the House of Regional Representatives Figure 7 Factions in the House of Representatives (2009-2014) Figure 8 Three Main Categories of Priority Bills in 2011 Figure 9 Three Main Categories of Priority Bills, 2010 vs 2011 Figure 10 Categories of Approved Bills in the 2011 National Legislation Programs Figure 11 Three Main Categories of Priority Bills in 2012 Figure 12 Three Main Categories of Priority Bills in 2010, 2011 and 2012 National Legislation Programs Figure 13 Process for Inclusion of Bills in the National Legislation Program Figure 14 Legislative Process for Bills Initiated by Commissions Figure 15 Process of Harmonizing Bills Bottleneck in the Current Legislative Process Table 1 Composition of Political Parties in the House of Representatives Table 2 The 2011 National Legislation Program Classified by Substance Table 3 The Eight Categories of Approved Bills in the 2011 National Legislation Program iv

4 24 27 31 31 34 42 47 48 50 52 53 57 59 62 8 45 48

Abbreviations

ABBREVIATIONS APBN BAKN

Anggaran Pendapatan dan Belanja Negara (State Budget) Badan Akuntabilitas Keuangan Negara (State Finance Accountability Committee) Baleg Badan Legislasi (Legislation Committee) Bamus Badan Musyawarah (Steering Committee) Banggar Badan Anggaran (Budget Committee) BKSAP Badan Kerja Sama Antar-Parlemen (Interparliamentary Cooperation Committee) BPJS Badan Penyelenggara Jaminan Sosial (Social Insurance Executing Agency) BUMN Badan Usaha Milik Negara (State Enterprise) DIM Daftar Inventarisasi Masalah (Problem Inventory List of a bill) DPD Dewan Perwakilan Daerah (Regional Representative Council) DPR Dewan Perwakilan Rakyat (House of Representatives) DPRD Dewan Perwakilan Rakyat Daerah (Local Legislative Council) ELSAM Lembaga Studi dan Advokasi Masyarakat (Institute for Policy Research and Advocacy) FGD Focus Group Discussion Formappi Forum Masyarakat Pemantau Parlemen Indonesia (Indonesian Parliament Watch) Gerindra Gerakan Indonesia Raya (Great Indonesia Movement) HAM Hak Asasi Manusia (Human Rights) Hanura Hati Nurani Rakyat (Peoples Conscience) Kemendagri Kementerian Dalam Negeri (Ministry of Home Affairs) KemenpanRB Kementerian Pemberdayaan Aparatur Negara dan Reformasi Birokrasi (Ministry of State Apparatus and Bureaucratic Reform) v

Abbreviations

KPK KPU MPR P3DI PAN Panja Pansus PDIP Perpres PKB PKS PPP PT Prolegnas PSHK PUU RI RKP RUU Surpres THC Timsin Timus UU UUD vi

Komisi Pemberantasan Korupsi (Corruption Eradication Commission) Komisi Pemilhan Umum (General Election Commission) Majelis Permusyawaratan Rakyat (People’s Consultative Assembly) Pusat Pengkajian, Pengelolaan Data dan Informasi (Center for Research, Data and Information Management) Partai Amanat Nasional (National Mandate Party) Panitia Kerja (Working Committee) Panitia Khusus (Special Committee) Partai Demokrasi Indonesia Perjuangan (Indonesian Democratic Party of Struggle) Peraturan Presiden (Presidential Regulation) Partai Kebangkitan Bangsa (National Awakening Party) Partai Keadilan Sejahtera (Prosperious Justice Party) Partai Persatuan Pembangunan (United Development Party) Perseroan Terbatas (Liability Company) Program Legislasi Nasional (National Legislation Program) Pusat Studi Hukum dan Kebijakan (Centre for Legal and Policy Studies) Perancang Undang-Undang (legislative drafter) Republik Indonesia (Republic of Indonesia) Rencana Kerja Pemerintah (Government Work Plan) Rancangan Undang-Undang (Bill) Surat Presiden (Letter of the President) The Habibie Center Tim Sinkronisasi (Synchronisation Team) Tim Perumus (Drafting Team) Undang-Undang (Law) Undang-Undang Dasar (Constitution)

Abstract

ABSTRACT A total of 560 members of the House of Representatives (Dewan Perwakilan Rakyat – DPR) elected at the 2009 General Election have spent the past two and a half years serving as people’s representatives. During this time, the House has come under public scrutiny and criticism on issues ranging from overseas visits for comparative studies to budget planning for the new House of Representatives building. However, public scrutiny and criticism have also been aimed at the legislative performance of the House of Representatives. Each year, National Legislation Program (Program Legislasi Nasional – Prolegnas) targets fail to be achieved. For example, in the 2011 National Legislation Program, the target was to pass 93 bills as laws. However, by the end of 2011, the House had only managed to pass 24 bills. This backlog in legislation has occurred repeatedly since 2005. In reality, laws passed by the House of Representatives will have a direct impact on people’s lives. Therefore, without exception, every law it produces binds the Indonesian people . The role of the House of Representatives in performing the legislative function is the main focus here. With the repeated backlog of bills year in year out, new innovations are needed to optimise the capacity of the 560 members of the House of Representatives to produce legislative products. In this regard, The Habibie Center (THC) has conducted research on “Improving the Legislative Function of the House of Representatives: Recommendations for Reducing Backlog of Legislation.” The aim of this vii

Abstract

research was to formulate recommendations to improve the legislative function of the House of Representatives to deal with the delay in passing bills into laws. From the findings of this policy research, the research team found that inadequate planning resulting from an absence of academic papers when bills were submitted was a common problem. During the discussion phase, the research team observed that multiple positions held by legislative members caused delays in scheduling meetings. Furthermore, there was a lack of specialist support, particularly in legislative drafting. Finally, the findings of this research highlight problems with the discipline of members of the House of Representatives and the time-consuming nature of public hearings. From the findings of this policy research, the research team formulated several policy recommendations that could provide a solution for policy makers to contribute to improving the future performance of the House of Representatives.

viii

CHAPTER I

CHAPTER I INTRODUCTION I.1. Background With the political changes in the transition from the New Order era to the period of reform in 1998, the House of Representatives rediscovered its role as a body that was able to make checks and balances on the government. The People’s Consultative Assembly had amended the 1945 Constitution (Undang-Undang Dasar – UUD) that allowed the House of Representatives to reassume its role as a body for channelling the aspirations of the people. In other words, the House of Representatives has a function and role on a par with that of other institutions such as the executive and the judiciary. In the amendment to the 1945 Constitution, Article 20 paragraph (1) states: “The House of Representatives has the authority to produce legislation.” Prior to the amendment, Article 20 paragraph (1) stated that: “All legislation should have the approval of the House of Representatives.” This change in the content of this article gave the House of Representatives more room to perform its legislative function – a significant change from the New Order era. In 1999, the Legislation Committee of the House of Representatives was formed for the first time, pursuant to the Rules and Regulations of the House of Representatives established by the House on 23 September 1999.1 In these Rules and Regulations, provisions governing the institution 1 Legislation Committee of the House of Representatives of the Republic of Indonesia: Performance and Evaluation 2004-2009, published by the Legislation Committee of the House of Representatives of the Republic of Indonesia, 2009.

1

Introduction

of the Legislation Committee of the House of Representatives are set forth in Articles 43 to 46.2 Furthermore, Decree of the House of Representatives 08/DPR RI/I/2005-2006 concerning the Rules and Regulations of the House of Representatives confirms the position of the Legislation Committee of the House of Representatives as the centre for establishing national legislation/laws. This confirmation of the position of the Legislation Committee strengthened and elevated the body both as an institution and in its tasks. Formation of this new state body was intended to maximise the potential of the members of the House of Representatives to produce legislation, which is one of the main functions of the House. In keeping with developments in the socio-political situation, changes were made to the 1999 Rules and Regulations of the House of Representatives aimed at optimising the execution of the functions of the House of Representatives; the 1999 Rules and Regulations having been produced by the members of the House during the 1999-2004 term of office. The changes to the Rules and Regulations were made in Decree of the House of Representatives No. 1 of 2009 concerning the Rules and Regulations of the House of Representatives. In these 2009 Rules and Regulations it emphasises that the Legislation Committee has a significant role in planning and drafting programs as well as prioritising debate of bills initiated by government initiatives and bills initiated by the House of Representatives. In establishing laws, the House of Representatives and the Government are obliged to debate these bills. During these debates, there can sometimes be a tug-of-war of interests between the government and the House of Representatives, which results in delays in the passing 2

2

1999 Rules and Regulations of the House of Representatives.

CHAPTER I

of bills to laws. The dynamics involved in the passing of the Bill on the Social Insurance Executing Agency to law are an example of this. Although this bill was finalised in October 2010, the government and members of the House failed to reach a consensus during the two debate sessions allocated to the House of Representatives. Law No. 27 of 2009 concerning the People’s Consultative Assembly, House of Representatives, Regional Representative Council (Dewan Perwakilan Daerah – DPD), and Local Legislative Council (Dewan Perwakilan Rakyat Daerah – DPRD) sets the maximum at two session debates for a bill, with a possible extension of one session. That session would be the last chance to debate the Bill on the Social Insurance Executing Agency. At that time, the bill was caught up in a difference of opinion between government and the House of Representatives regarding the transformation of four state enterprises – Jamsostek, Taspen, Asabri, and Askes. The purpose of this transformation was to merge these four state enterprises into one new body, as mandated in the articles of the Bill on the Social Insurance Executing Agency. This would mean funding these four state enterprises to the tune of IDR 190 trillion.3 Before bills are debated, the House of Representatives executes the National Legislation Program, which is a planned, integrated and systematic program and legislative planning instrument that has a key role in the politics of legal development in Indonesia. The dynamic nature of the National Legislation Program as a legislative planning mechanism 3 Transformasi 4 BUMN Masih Jadi Ganjalan Pengesahan (Transformation of 4 State Enterprises Delays Law), 28 October 2011, http://nasional.kompas.com/ read/2011/10/28/12505575/Transformasi.4.BUMN.Masih.Jadi.Ganjalan.Pengesahan, accessed 25 April 2012.

3

Introduction

means that its implementation must be constantly evaluated to ensure that lawmaking is planned, integrated and systematic. However, in reality, the National Legislation Program sets legislative targets that are too high, with the number of bills it annually aims to pass being far higher than is ever actually realised. Figure 1 2005-2011 National Legislation Programs: Target vs Actual 100 80 60

Target

40

Actual

20 0

Actual

2005

2007

2009

2011

Source: Law and Policy Research Centre (PSHK), 2012

The graph above shows the significant gap between the National Legislation Program targets and the actual results achieved by the members of the House of Representatives from 2005 to 2011. Furthermore, there was a sharp increase in the number of bills prioritised in 2011 due to the addition of bills that had not been completed in 2010, which contributed to the backlog of priority bills in the 2011 National Legislation Program. Backlog of bills is not new, one that repeats itself year in year out. In 2006, a House

4

CHAPTER I

of Representatives research team4 identified several problems related to the legislative function, including the failure to achieve the target number of bills set in the National Legislation Program and the quality of the legislative products produced by the House of Representatives.5 The legislative function or function of establishing laws that the House of Representatives has has a direct impact on people’s lives. Therefore, without exception, every law it produces binds the Indonesian people. The role of the House of Representatives in performing the legislative function is the main focus here. With the repeated backlog of bills year in year out, new innovations are needed to optimise the capacity of the 560 members of the House to produce legislative products. I.2. Research Questions With reference to the background described in the previous section, in this policy research, the questions that will be the main focus of the research include: 1. How does a bill become law in the House of Representatives? 4 This research team was established by Decree of the Leader of the House of Representatives No. 12 dated 16 February 2006 in response to negative public opinion of the performance of the House of Representatives, making public criticism, dissatisfaction, and negative opinion the basis for improving the performance of the House. The research team consisted of Zaenal Ma’arif (Team Leader/Deputy Leader of the House of Representatives), Darul Siska (Deputy Team Leader/Golkar politician), Eva Kusuma Sundari, Lukman Hakim Saifuddin, and Alvin Lie. This research took place over a period of 10 months and involved 550 respondents. It also involved NGOs, the State Administration Agency, the Indonesian Institute of Sciences (Lembaga Ilmu Pengetahuan Indonesia), the National Development Planning Agency (Bappenas), the State Audit Board, and mass media. This study team was ad hoc and has not functioned since the change in office of the members of the House of Representatives. 5 Zubairi Hasan, “Memperbaiki Kualitas Pembentukan Undang-Undang (UU)” (“Improving the Quality of the Legislative Process”), Indonesian Journal of Legislation, Vol. 4, No. 2, June 2007.

5

Introduction

2. What the causes the delay in the House of Representatives processing bills into law? 3. What initiatives are in place to address this delay in the process of making bills into laws and to reduce the backlog of bills in the House? I.3. Research Objectives This policy research was conducted over a period of four months, with the objective as follows: 1. To formulate recommendations for improving the legislative function of the House of Representatives in order to accelerate the process of the passing of bills to laws. 2. To produce a policy paper on the factors that delay the passage of laws and to present relevant recommendations for reducing the backlog of bills at the House of Representatives. I.4. Methods of Data Collection and Analysis This research adopts a qualitative approach. This approach is used to get a holistic understanding of issue by analysing in-depth data and information gathered. Qualitative methodology is the source of generalisations and strong arguments and contains explanations for processes that occur in a particular setting, so that with qualitative data the flow of events can be understood chronologically and many useful explanations can be derived.6 This research uses various methods of data collection: 6 Matthew B. Miles and A. Michael Huberman, Analisa Data Kualitatif: Buku Sumber tentang Metode-Metode Baru (Qualitative Data Analysis: An Expanded Source Book), Jakarta: University of Indonesia Press, 1992, pp 1-2.

6

CHAPTER I

1) Literature Review The literature review involved referring to data sources obtained from the review of books, papers and findings of research relevant to the context of the performance of the House of Representatives, and to clippings of news items in printed media from 2009 to 2011 (the 20092014 term of office for members of the House of Representatives). From these various secondary sources of data and news clippings, the research team analysed news related to the performance of the House of Representatives, in particular with regard to the legislative function of the House, as a general picture of the subject the research would be analysing. 2) In-depth Interviews with Members of the House of Representatives This research conducted in-depth interviews with three commissions of the House of Representatives (Commission I, Commission III, and Commission X), and with the Legislation Committee. These in-depth interviews were conducted using interview guidelines relevant to the process of debate and passing of laws in the House of Representatives. There were at least nine source persons from each of the commissions and from the Legislation Committee. From each of the commissions and the Legislation Committee, three members of the House were selected: two from major political parties (Democrat Party, Indonesian Democratic Party of Struggle, and Golkar Party) and one from a medium or small political party7 (Prosperous Justice Party, National 7 Partai Kecil Melawan Partai Besar (Small Political Parties Take on the Large), Kompas.com, 30 April 2012, http://nasional.kompas.com/read/2011/11/01/06075933/Partai.Kecil. Melawan.Partai.Besar, accessed on 30 April 2012.

7

Introduction

Mandate Party, United Development Party, National Awakening Party, Great Indonesia Movement/Gerindra Party and Peoples Conscience/ Hanura Party). The composition of major, medium and small parties is shown in the table below:8 Table 1 Composition of Political Parties in the House of Representatives9 Party

Number of Seats 145 103 93

Democrat Party Golkar Party Indonesian Democratic Party of Struggle Properous Justice party 57 National Mandate Party 45 United Development Party 37 National Awakening Party 27 Gerindra Party 25 Hanura Party 17 Source: General Election Commission, 2009

Category9 Major party Major party Major party Medium party Medium party Medium party Small party Small party Small party

Given the busy schedules of the members of the House of Representatives, this research only conducted a series of interviews with members of the House to explore relevant issues in more depth . More specifically, interviews were conducted to corroborate data and information obtained from the focus group discussions (FGD). 8 The terms ‘major party’, ‘medium party’ and ‘small party’ are political terms used to describe the power of political parties based on the results of the most recent general election. In the context of the 2009 general election, the major parties are the political parties that won more than 90 seats in the House of Representatives. Hence, a medium party is a political party that has 30-60 seats in the House, and a small party is a political party that holds less than 30 seats. 9 A total of 549 seats declared and 11 undeclared (Papua and 4 doubtful candidates), http://mediacenter.kpu.go.id/images/mediacenter/Nia/PDF/perolehan_kursi_parpol2.pdf, accessed 25 April 2012.

8

CHAPTER I

3) Focus Group Discussions The aim of the focus group discussions was to create an initial picture of conditions internal and external to the House of Representatives. These focus group discussions helped the researchers to fine tune their analysis by bringing a balanced interpretation of the challenges involved in the legislative processes in the House of Representatives. Three focus group discussions were held, each involving participants from the various actors involved. The first focus group discussion involved participants from Legislation Committee’s team of experts from the Secretariat General of the House of Representatives and members of the Legislative Drafting committee at the Secretariat General of the House of Representatives. The second focus group discussion involved external actors such as representatives from the media and NGOs. The third focus group discussion again involved experts from the Legislation Committee, along with researchers from the House Secretariat general’s Center for Research, Data and Information management with the aim of confirming and validating the data and information gathered previously. 4) Peer Review Peer reviews were performed twice, by the research team and peer reviewers, to validate the research findings. The aim of the first peer review was to review the research team’s initial research findings. The aim of the second peer review was to validate the final findings of this policy research. I.5. The Research Subject With regard to the research subject that is the focus of this policy research, 9

Introduction

as mentioned in the previous section, this policy research involved representatives from Commission II,10 Commission III,11 Commission X,12 and the Legislation Committee.13 The choice of these three of the eleven commissions and a state organ (the Legislation Committee) had to do with the strong political motivation within them.14 For this reason, the inclusion of Commission II was paramount as it is overseeing the Ministry of Home Affairs, Ministry of State Apparatus and Bureaucratic Reform, General Election Commission, General Election Supervisory Committee, and the National Land Agency. Looking at its work partners, the political dimension is a key factor in the performance of Commission II. The research team also chose Commission III. The executive government bodies overseen by Commission III are the Ministry of Law and Human Rights, the Indonesian Police, and the Corruption Eradication Commission. Looking at its work partners, Commission III is very closely associated with law enforcement. Also, the members of Commission III have educational 10 The scope of the work of Commission II is (1) home governance affairs and regional authority, (2) state apparatus and bureaucratic reform, (3) general election affairs, and (4) land and agrarian reform. 11 The scope of the work of Commission III is (1) law, (2) human rights, and (3) security. 12 The scope of the work of Commission X is (1) education, (2) culture, (3) tourism, (4) creative economy, (5) youth, (6) sports, and (7) libraries. 13 The Legislation Committee was formed by the House of Representatives and is a permanent organ of the House. The composition of the membership of Legislation Committee is decided at a plenary session, in proportion to the number of members of each faction at the start of the term of office of membership of the House of Representatives and at the opening session. 14 The commissions consist of Commission I through XI. The House has seven organs: Steering Committee, Legislation Committee, Budget Committee, State Finances Accountability Committee, Interparliamentary Cooperation Committee, Internal Affairs Committee, and House Ethics Committee. The commissions are actually organs of the House just as the other seven organs are, but the commissions are permanent. See Regulation of the House of Representatives of the Republic of Indonesia concerning 2009 Regulations, pp 19-71.

10

CHAPTER I

backgrounds in law, which meant that the research team could explore in depth any legal issues. With regard to the legislative process, debates of bills by Commission III also have a very strong political dimension, and therefore take a long time to debate. As an example, revision of the Law on the Corruption Eradication Commission has been the subject of public debate since it was a bill. The next commission to be the subject of this policy research was Commission X. The executive government bodies overseen by Commission X are the Ministry of Education and Culture, Ministry of Tourism and Creative Economy, Ministry of Youth and Sport, and the National Library. In the opinion of the research team, Commission X is the commission that is most productive in producing laws. In 2010, Commission X produced two laws: the Cultural Heritage Law; and the Scout Movement Law. In 2011, Commission X debated four bills: the Higher Education Bill; Medical Education Bill; National Library Bill; and the Culture Bill.15 In the legislative process -- as with Commission II and Commission III --, there is a very strong political dimension to the debates. In the three commissions that are the focus of this policy research, one factor in their success/progress in debating a bill is the ability of the chairs of the meetings to accommodate differences of opinion, which prevents the meetings from becoming tedious and prolonged. Finally, the team selected the Legislation Committee because it is the body that has the authority to make laws. In the mechanism of making laws, whether on the initiative of the House of Representatives or the 15 Interview with Reni Marlinawati (Commission X/Partai Persatuan Pembangunan (PPP) Faction) on 24 January 2012.

11

Introduction

government, it must go through the Legislation Committee. This body has the role of preparing the annual (short-term), medium-term and long-term National Legislation Programs that are the reference for making priorities. The Legislation Committee is also where the harmonisation, completion and finalisation of bills take place. I.6. Research Benefits, Limitations and Sustainalibity 1) Benefits: To maximise involvement of actors in the House of Representatives and other relevant bodies in its analysis and formulation of recommendations. Therefore, the main benefit of this research is that it provides a recommendation that will be validated by key actors in the House. 2) Limitations: The main limitation of this research is that the backlog of bills may also the result of processes that are outside the control of the House, and this research does not focus on these external constraints. Furthermore, the duration of this research of just four months put a time constraint on the identification and collection of data, and their analysis. Moreover, the duration of research is in unison with the House recess period. 3) Sustainability: Through networks that have been built by The Habibie Centre, the research results will be publicised with the aim of disseminating the policy research findings. This may also secure additional funding to follow up on this research. The Habibie Center also aims to build good relations with the House of Representatives for the purpose of giving further input on the recommendations made for improving the effectiveness of House members. This follow up research 12

CHAPTER I

also aims to ensure that House members are able to implement the recommendations that have been made by arranging capacity building workshops and training for House members. I.7. Literature Review The performance of the House of Representatives is a matter of particular concern both inside and outside the House. Few studies have been carried out of the performance of the House of Representatives, yet media scrutiny of the performance of the House is intense. In 2006, the House formed a research team of people who themselves had been appointed by Decree of the Leader of the House of Representatives No. 12 dated 16 February 2006, in response to negative public opinion of the performance of the House.16 This survey of 550 respondents took place over a period of 10 months, and the result was a 134-page report entitled “Reforming the House of Representatives of the Republic of Indonesia: Report of the Research Team Findings on Improving the Performance of the House of Representatives.” From the findings of the research team, several problems with the legislative function were identified, including: 1) The quality of the laws produced is not of direct benefit to people’s lives. This is due to the minimal public participation in the making of laws, including in preparing the list of bills in the National Legislation Program; a lack of sources of data and information required by House members; and the intellectual capacity of the 16 Report of the Research Team Findings on Improving the Performance of the House of Representatives of the Republic of Indonesia, “Reforming the House of Representatives”, Jakarta: December 2006.

13

Introduction

House members themselves; 2) The House has been unable to meet the target for the number of laws finalised set in the National Legislative Program, because the position of the Legislation Committee as the entry point for all initiatives is disorganised, and because the members of the House do not understand the mechanism and procedures for drafting bills; and 3) The debating of bills is not sufficiently transparent, particularly debates at the Working Committee level, which are closed meetings. This report of the findings of the House of Representatives research team offers solutions and recommendations for improving the performance of the House. But unfortunately, little notice was taken of this report and it failed to spark a reaction. There was no interest from any key actors, in particular the leadership of the House, in following up on these research findings, despite coming from people within the House itself.17 In 2009, the Institute for Policy Research and Advocacy (Lembaga Studi dan Advokasi Masyarakat – ELSAM) carried out an assessment of the execution of the legislative function and the supervisory function of the House of Representatives to assess the responsiveness of the House to human rights.18 From the results of this assessment, ELSAM found that in terms of quality, the legislative products of the House were far 17 Menelisik Kajian Internal DPR dan Gagasan Socially Responsible Law-Making (Internal House Review and the Concept of Socially Responsible Law-Making), 26 February 2007, www.hukumonline.com/printedoc/hol16250, accessed 20 April 2012. 18 Indriaswati Dyah, et al., “Penilaian Kinerja DPR dan Hak Asasi Manusia” (“Evaluation of the Performance of the House of Representatives and Human Rights,”) ELSAM, 2009.

14

CHAPTER I

from satisfactory. This was due to the fact that many of the laws sparked controversy and did not address people’s real needs. The legislative material debated by the House had more to do with political power interests. The legislative products of the House tended to be repetitive, repeating existing regulations, because they had to do with promoting the interests of the factions in the House. In its assessment of the commitment to human rights of the legislative products of the House from 2005 to 2009, ELSAM analysed at least 35 laws that were considered to have a strong connection with human rights. Of the 35 laws analysed, it was found that 20 could be said to have observed human rights, including the Law on Ratification of International Conventions on Economic, Social and Cultural Rights, the Law on Ratification of International Conventions on Civil and Political Rights, the Law on Teachers and Lecturers, the Republic of Indonesia Citizenship Law, the Law on Witness and Victim Protection, and the Law on Public Information Access. The remaining 15 laws failed to observe human rights, and some even jeopardised efforts to protect human rights. These included, the Population Administration Law, the Investment Law, the Law on Spatial Use, the Energy Law, the Law on Information and Electronic Transactions, and the Pornography Law. The findings of this ELSAM assessment also revealed a high incidence of transactional politics between factions in the House. This means that the course of the debate of a bill is largely determined by the level of interest of the politicians in the House. The real need to accelerate people’s welfare and protect the human rights of all citizens is not the basis on which a law is considered beneficial or otherwise. As a result, debate of a law that is considered not beneficial to the politicians in the House is a mere 15

Introduction

formality. An example is the debate of the Witness and Victim Protection Bill. Although the main aim of this bill was to provide protection for citizens’ human rights, in the focus of the debate was meeting the need for criminal proceedings. Although in its considerations, this law cites a number of human rights articles in the 1945 Constitution, the importance of protecting the human rights of all citizens did not even come up during the debate of this law. This process gives the impression that the state, in the law making process, is half-hearted about providing protection to all of its citizens.19 In its conclusion, ELSAM emphasised that the House of Representatives showed no consistency in the establishment of regulations related to human rights. There were many inconsistencies between plans and implementation. As well as being of poor quality, the majority of the legislative products of the House that have been enacted fail to reflect the interpretation of the protection of human rights emphasised in the 1945 Constitution. As a consequence, some legislative products, particularly those that do not observe human rights, tend to contradict both the Constitution and other statutes. The effect is that legislative products that are expected to provide support and a legal basis for the promotion, fulfilment and enforcement of human rights, in fact threaten and endanger protection of human rights. In the assessment conducted by ELSAM, the focus of the analysis is entirely on human rights in the legislative process. The ELSAM research does not explain in detail the context of the phases of the legislative process, which is the main focus of this policy research. However, this ELSAM assessment does provide a relevant contribution to discussion of the factors that cause the backlog of bills in the House of Representatives. 19

16

Ibid.

CHAPTER I

The Centre for Legal and Policy Studies (Pusat Studi Hukum dan Kebijakan – PSHK) also conducts periodic research on the performance of the House of Representatives. For example, in 2010, it carried out an assessment of the legislative performance of the House in terms of quality (in the sense of process and substance) by designing assessment categories that could be used to measure the quality of the legislation produced by the House in 2006. These assessment categories referred to four aspects: 1) Substance in terms of the content of laws; 2) Substance in terms of the structure and use of norms in laws; 3) Debate of bills in terms of public participation; and 4) Debate of bills in terms of debate during discussions.20 Assessing the legislation produced by the House in terms of quality is considered more appropriate because it can illustrate the commitment, seriousness and degree to which aspirations are accommodated by the House. Conversely, a quantitative assessment of the legislation produced by the House is considered inappropriate because it does not receive the budgetary support, teams of experts, or other technical assistance needed to maximise its production of laws. It would be unfair to demand that the House produce laws in numbers that its members would be incapable of doing.21 There are two key aspects to assessing the quality of legislation: (1) the quality of the content of a law; and (2) the quality of the process of making a law. The quality of the content of a law has to do with whether its 20 Zubairi Hasan, “Memperbaiki Kualitas Pembentukan Undang-Undang (UU),” (“Improving the Quality of Law Making”) Indonesian Journal of Legislation, Vol. 4, No. 2, June 2007. 21 Ibid.

17

Introduction

articles reflect people’s aspirations and whether it can be an entry point for improving the lives of people. The quality of the process of the making of law has to do with whether the process of debating a bill provides room for public participation and involves argumentative debate. In fact, for assessing the quality of legislation produced by the House, Law No. 12 of 2011 on Law Making provides guidelines that can be used as a reference for the principles of good law making, which includes: stating the objectives; having an appropriate agency or official making the law; consistency of type, hierarchy and content; feasibility; efficiency and effectiveness; and clarity and transparency (see Article 5 of Law No. 12 of 2011). Also in 2006, the Centre for Legal and Policy Studies devised categories for the legislative products of the House, although this was based on a law that was no longer in effect (Law No. 10 of 2004).22 The Centre for Legal and Policy Studies selected 11 laws as the main focus of its study because it considered them to be representative of the quality of the legislation produced by the House in 2006, as they were discussed seriously by the House and the President. According to the Centre for Legal and Policy Studies, these 11 laws differed in character from other laws which had to do with ratifying international conventions and merely had to be enacted, or from laws relating to realignment of regional boundaries, in which political lobby was more dominant in the debate of their content and 22 Realignment of regional boundaries (16 Laws), ratification of international conventions and bilateral agreements (7 Laws), Enactment of a Government Regulation in Lieu of Law (1 Law), the State Budget (4 Laws), and other categories (11 Laws). The Centre for Legal and Policy Studies carried out assessment of 11 Laws in the ‘other’ category: the Law on Warehouse Inspections, Law on Population Administration, Law on the State Audit Board, Law on Witness and Victim Protection, Law on Citizenship, Law on Assistance for Appeals in Criminal Cases, Law on Religious Courts, Law on Customs, Law on the Government of Aceh, Law on the System of Agriculture Extension, and the Law on the Presidential Advisory Council.

18

CHAPTER I

for which the House had a fairly standard format.23 The findings of the assessment of legislative quality conducted by the Centre for Legal and Policy Studies indicated that the quality of the legislation produced by the House was less than satisfactory. Despite significant achievements by members of the House, such as the seriousness of Commission III, which was able to finalise three bills, there was the closed debate of certain bills that should have been open to the public, and the speed of the debate of the bill on the government of Aceh, which was a crucial issue at the time and should have been finalised as quickly as possible. Furthermore, the report of the latest research by the Centre for Legal and Policy Studies conducted in 2010 comments on the performance of the House of Representatives in 2011. The results of observations by the Centre for Legal and Policy Studies over a two year period of the 2009-2014 terms of office of the House indicate that the House is still unable to guarantee transparency and accountability in the execution of its legislative function. The House and the government gave the impression of being disinterested in its main substance, which are the interests of the people themselves. Therefore, it would not be unwarranted to ask whether execution of the legislative function was performed in the interests of or as a form of political transaction between the politicians and law makers.24 The findings of the research conducted by the Centre for Legal and Policy Studies reveal a 23 Zubairi Hasan, “Memperbaiki Kualitas Pembentukan Undang-Undang (UU),” (“Improving the Quality of Law Making”) Indonesian Journal of Legislation, Vol. 4, No. 2, June 2007. 24 Fajri Nursyamsi, et al., “Catatan Kinerja DPR 2011, Legislasi: Aspirasi atau Transaksi,” (Notes on the 2011 Performance of the House of Representatives, Legislation: Aspirations or Transactions”), Centre for Legal and Policy Studies, 2012.

19

Introduction

neglect of some of the rules regarding transparency and public participation in legislative processes in the House of Representatives, such that the function of people’s representation that the constitution places in the body of the House of Representatives is neglected to the point of representation only for an elite handful. Other findings indicate a discrepancy between the targets the House wants to achieve (in the National Legislation Program) and the effort they put into achieving these targets, which results in failure not only in terms quantity but also neglect in terms of the quality of the law making process and of the substance of the legal products.25 The results of these two assessments by the Centre for Legal and Policy Studies made a significant contribution to the policy research and to the argument for improving the legislative function of the House of Representatives at a time when the legislative productivity at the House is under close scrutiny. I.7.1. Conceptual Framework The 1945 Constitution is the constitution of Indonesia, which is the consensus of all citizens of Indonesia. As the highest law governing the life of nation and state, the 1945 Constitution embodies the aspirations, basis and principles of state administration. The aspirations of the formation of the state, which are known as the national goals, are set forth in the fourth paragraph of the Preamble to the 1945 Constitution, namely: 1) To protect the all the people of Indonesia and their entire native land; 2) To improve public welfare; 3) To advance the intellectual life of the people; and 4) To contribute to the establishment of a world order based on 25

20

Ibid.

CHAPTER I

freedom, abiding peace, and social justice. In the Preamble to the 1945 Constitution, four amendments to the original text, which consisted of 72 articles, have changed the content of the constitution, which now consists of 199 articles. The overall consensus that forms the material of the constitution regarding the principles of regulating and limiting state powers is, of course, based on the national goals. Constitutionalism governs two inter-related relationships, first, the relationship between government and the people, and second, the relationship between one government institution and other government institutions. Therefore, the content of the constitution is meant to govern three key aspects:26 1) Set limits to the power of state organs, 2) Govern relations between state institutions, and 3) Govern power relations between state institutions and citizens. Therefore, one key aspect that is always embodied in constitution is regulation of state institutions. This is understandable because the power of the state is ultimately translated into the duties and authority of state institutions. Whether or not the goals of state are achieved depends on how these state institutions execute their constitutional duties and authority and their relations with each other. The regulation of state institutions and the relations between state institutions reflects the choice of the principles of state that are adhered to.27 26 Jimly Asshiddiqie, Hubungan Antar-Lembaga Negara Pasca Perubahan UUD 1945, (Relations between State Institutions Post Amendment of the 1945 Constitution). Presentation at State Administration Agency Intake XVII Level I Leadership Education and Training . Jakarta, 30 October 2008, presented again during a focus group discussion at LEMHANNAS, 15 November 2010. 27 Ibid.

21

Introduction

Regulation of state institutions can be classified by the function of state power. According to Frank Goodnow, state power can be differentiated in terms of the policy-making function and the policy executing function. This theory is called the duo-politica theory. From a different perspective, Montesquieu differentiates three branches of state power (trias politica): executive; judicial; and legislative. The executive function has to do with the execution of government based on the implementation of laws, which in practice, means the executive participating in the debate of laws through the ministries. In other words, the executive also executes a synergy of functions with the House of Representatives, in this case, the making of laws. The judicial function has to do with enforcement of the law in the event of a conflict or breach of policy through the judicial institutions. The legislative function has to do with all activities that represent the people in terms of law-making. Institutionalisation of this legislative function is known as parliament, or in Indonesia, the House of Representatives. In fact, there is a system for separation of these powers in order to provide space for checks and balances that allows each power to check and evaluate the others thereby minimising the excessive execution of power.28 Based on models of legislative function applied by other countries, in some the legislative function is institutionalised in one forum, which is known as unicameral or monocameral. In others, it is institutionalised in two forums (bicameral), and in some the structure of parliament is multicameral, consisting of more than two houses or institutions.29 Indonesia is 28 See paper by Prof. Dr. Jimly Asshiddiqie, SH., Lembaga Perwakilan dan Permusyawaratan Rakyat Tingkat Pusat, (People’s Representative and Consultative Assemblies at the National Level) www.jimly.com/makalah/namafile/40/Trikameralisme_DPD.doc, accessed 04 February 2012. 29 See dissertation by Dr. Fatmawati, Struktur dan Fungsi Legislasi Parlemen dengan Sis-

22

CHAPTER I

a concrete example of a multi-cameral structure, which has three parallel institutions: the House of Representatives, Regional Representative Council, and the People’s Consultative Assembly.30 Of these three institutions in the parliamentary structure in Indonesia, as regards law making, the House of Representatives contributes to the making of laws, the Regional Representative Council function to give input into the making of laws, and the People’s Consultative Assembly has the task of establishing the Constitution as the highest law. Compared with other countries, the Regional Representative Council is function as decision maker in the making of certain laws. However, because they are based on the current version of the 1945 Constitution, the decisions of the Regional Representative Council have no bearing whatsoever on the process in the making of a law, and the role of the Regional Representative Council is limited to that of advisor to the House of Representatives. Thus, the structure of the Indonesian parliament can be described as collaboration between three parliamentary forums that have legislative functions, in the broad sense. The presence of the House of Representatives, Regional Representative Council, and the People’s Consultative Assembly in Indonesia’s system of state administration can be seen as a union of representative and consultative institutions that makes policy decisions based on the 1945 Constitution.31 tem Multikameral: Studi Perbandingan antara Indonesia dan Berbagai Negara”, (“The Legislative Structure and Function of Multicameral Parliaments: A Comparative Study of Indonesia and Other Countries”), University of Indonesia Faculty of Law, Jakarta, 2009. 30 The House of Representatives is a political representative assembly, the Regional Representative Council is a regional representative assembly, and the People’s Consultative Assembly is the political and regional representative of all people, a joint session of the House of Representatives and the Regional Representative Council. 31 See paper by Prof. Dr. Jimly Asshiddiqie, SH., Lembaga Perwakilan dan Permusyawaratan Rakyat Tingkat Pusat, (People’s Representative and Consultative Assemblies at the National

23

Introduction

More specifically, as the main legal framework in Indonesia, the amended 1945 Constitution provides a broad reference for making laws. This framework is the legal umbrella and broad guideline for the legislative process in Indonesia. Figure 2 Outline of the Lawmaking Process

Source: Legal Drafting Bureau, Secretary General of the House of Representatives of the Republic of Indonesia, undated

I.7.1.1. Legal Basis for the Position of the House of Representatives The position of the House of Representatives in the state administration system has change significantly following the enactment of the fourth amendment to the 1945 Constitution. Article 20 paragraph (1) of the 1945 Constitution states that: “The House of Representatives has the authority to make laws.” Although the authority to make laws lies in the House of Representatives, all bills must be debated with government, as stated in Article 20 paragraph (2), “…all bills is discussed by the House Level) www.jimly.com/makalah/namafile/40/Trikameralisme_DPD.doc, accessed 4 February 2012.

24

CHAPTER I

of Representatives and the President in order that a consensus be reached.” The House of Representatives is the highest state institution that has the task of executing legislative functions, supervisory functions, budgetary functions and representation functions as described in Article 20A of the 1945 Constitution. In executing these functions, the House has interpellation, investigative, and opinion rights (Article 20A paragraph (2) of the 1945 Constitution). Moreover, the House of Representatives has the right to pose questions, make suggestions and express opinions, and the right of immunity (Article 20A paragraph (3) of the 1945 Constitution). There is also provision for further regulation of the rights of members of the House of Representatives by law (Article 20A paragraph (4) of the 1945 Constitution). The regulations concerning the rights granted to the House of Representatives actually indicate the bargaining position of independence of the House vis-a-vis other state institutions by prioritising the interests of the people above the interests of the executive that is in power. More specifically, the basic functions of the House of Representatives can be described as follows: 1) Legislative Function: This function concerns translating the aspirations of the people into political decisions that will be implemented by the executive (government). Here, the quality of the members of the House is tested. They must be able to plan and determine the direction and goals of governance activities appropriate to existing conditions and needs. 2) Supervisory Function: This function concerns ensuring that implementation of political decisions that have been made does 25

Introduction

not diverge from the direction and goals that have been set. Ideally, members of the House not only detect procedural discrepancies, but should also detect technical discrepancies, such a physical structure whose durability exceeds normal expectations 3) Budgetary Function: This function concerns the ability of the House to distribute budget according priority scales set by policy. 4) Representation Function: Regarding the representation function, based on the theories of Pitikin, political representation here is in the substantive sense of “acting on behalf of those represented and in a way that responds to them.”32 Törnquist adds that there are key points of concern in representation: representation requires that there be a representative, the represented, and something that is being represented. Furthermore, discussion of representation must have a political context.33 So, based on the above description, the position of the four functions of the House of Representatives is important and these four functions are automatically invested in each member of the House.

32 Hanna Fenichel Pitkin, “Representation and Democracy: Uneasy Alliance,” in Scandinavian Political Studies, Vol. 27 – No. 3, 2004. 33 Olle Törnquist, “Introduction: The Problem is Representation! Towards an Analytical Framework “ in Olle Törnquist, Neil Webster and Kristian Stokke (eds.), Rethinking Popular Representation, New York: Palgrave Macmillan, 2009.

26

CHAPTER I

Figure 3 Functions of the House of Representatives

Source: The Habibie Center, 2012

The balance of these four functions is a must in assessing the performance of members of the House, because legislation, supervision, budget and representation are all part of a whole. In reality, the representation function of the House is swamped by the other three functions. As people’s representatives, members of the House should act on behalf of the people or promote the aspirations of the people they represent, but all too frequently they act in the name of their party or toe the party line.34 This is unavoidable, because the driving political motive that usually exists in the factions is a reflection of the involvement of members of the House as representatives of political parties; not just representatives of the people, but also representatives of interest groups.35 As an example, debate of the General Election Bill was very protracted. This was because of the 34 Bintan R. Saragih, “Strategi Memasukkan Fungsi Representasi dalam Undang-undang SUSDUK dan Tata Tertib DPR RI,” (“Strategy for Satisfying the Representation Function in the Law on the Composition and Position of the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional Houses of Representatives and the Rules and Regulations of the House of Representatives of the Republic of Indonesia”) Main points of a paper presented at a focus group discussion between the Secretary General of the House of Representatives and UNDP, Jakarta, 5 June 2008, www.parlemen.net, accessed 1 February 2012. 35 Interview with Ganjar Pranowo (member of Commission II, Partai Demokrasi Indonesia Perjuangan (PDIP) Faction, on 8 February 2012.

27

Introduction

political interest each of the factions had in this bill. For this reason, lobby between the general leaders of the parties provided a solution to a crucial problem.36 The supervisory function can impact on whether a proposed revision of a law proceeds or whether a budget proposal for the following year is approved. Therefore, the supervisory function must act as an entry point for execution of the other functions, because budget approval without policy evaluation will undermine the budgetary function. On the other hand, a supervisory function that is not based on regulation-based policy evaluation will undermine execution of the legislative function.37 As people’s representatives, the House of Representatives is elected directly by the people and is entrusted by the people to be able to meet people’s basic needs through legal products that are in the public interest. As mentioned elsewhere, the four functions that are the priority work of the members of the House (legislative, budgetary, supervisory and representation) often fail to be executed proportionally. It can be almost guaranteed that every period, the achievement of the legislative function of the House falls well below that of budgetary and supervisory functions, which automatically affects the representation function of the House. I.7.1.2. Legislative Planning in Indonesia In Law No. 12 of 2011, Chapter IV on Legislative Planning states in Article 36 Lobi RUU Pemilu Molor, Golkar Walkout, (Election Law Lobby Breakdown, Golkar Walkout) , Wednesday 12 April 2012, http://politik.vivanews.com/news/read/303739-lobi-ruupemilu-molor--golkar-walkout, accessed 25 April 2012. 37 Ferry Mursyidan Baldan, “Menata Alat Kelengkapan bagi Penguatan Fungsi DPR,” (“Organising State Organs to Strengthen the Functions of the House of Representatives”) presented at a workshop on “Organising Democratic, Effective and Accountable Parliament, Nusantara II Building, House of Representatives, 29 February 2012.

28

CHAPTER I

16 that “Legislative planning is undertaken in the National Legislation Program.” In essence, the National Legislation Program is a scale of legislative priorities devised towards creating a national legal system (see Article 17 of Law No. 12 of 2011). Meanwhile, in Article 1 number 8 of Decree of the House of Representatives 1/2009 concerning the Rules and Regulations of the House of Representatives, the National Legislation Program is defined as a planned, integrated and systematic legislative planning instrument. In these Rules and Regulations, the National Legislation Program is divided into periods: long-term (20 years), mediumterm (5 years) and short-term (one year). Preparation and establishment of the long-term National Legislation Program is carried out according to law. Preparation and establishment of the medium-term National Legislation Program is carried out at the start of the term of office of the members of the House of Representatives as implementers of the long-term National Legislation Program, which can be evaluated at the end of each year when the annual National Legislation Program priorities are prepared and determinate.38 The National Legislation Program embodies the lawmaking program including the basic concepts that will be regulated and its association with other laws and regulations. The basic concepts means (i) the background and aim of making the law, (ii) the goals that will be achieved, (iii) the main considerations, scope or object that will be governed, and the coverage and direction of the regulation (Article 4, Regulation of the President No. 61 of 2005). Pursuant to Article 18 of Law No. 12 of 2011, preparation of legislative 38

Article 106 of the Rules and Regulations of the House of Representatives 1/2009.

29

Introduction

priorities is based on: 1) Mandate of the 1945 Constitution 2) Mandate of Decree of the People’s Consultative Assembly 3) Mandate of other legislation 4) The national development planning system 5) The long-term national development plan 6) The medium-term national development plan 7) Government work plans and strategic plans of the House of Representatives 8) The aspirations and legislative needs of the people There are at least five stages in the legislative process in the House of Representatives: planning, preparation, discussion, approval, and enactment. These five stages represent a continuous process of activity in law-making. This flow chart of the legislative process refers to Law No. 12 of 2011, and is used as a main reference in this policy research of the National Legislation Program.

30

CHAPTER I

Figure 4 The Lawmaking Process

Source: Law 12/2011

Meanwhile, the Centre for Legal and Policy Studies’ version of the legislative process can be illustrated as follows: Figure 5 The Centre for Legal and Policy Studies’ Version of the Lawmaking Process

Source: Centre for Legal and Policy Studies, undated 31

Introduction

From the two graphs above, it can be seen that there are differences in the stages, whereby the planning phase is broken down into the drafting phase and proposal phase, and the approval process is divided into two phases. However, despite these differences in interpretation of the legislative process, a combined description of the phases is as follows: I. Planning Phase In the planning phase, one-year and five-year National Legislation Programs are devised. The planning of these National Legislation Programs involves the organs of the House of Representatives, in particular the Legislation Committee,39 which asks for submission of proposals from factions, commissions and the Regional Representative Council no later than one session prior to their preparation. Thus, the planning of the National Legislation Programs within the House of Representatives is coordinated by the Legislation Committee. Within government, this planning process is coordinated by the minister whose tasks and responsibilities include legislative affairs (in this case the Minister of Law and Human Rights).40

39 Article 16 paragraph (1) of Law 10/2004, Article 102 paragraph (1) letter b of Law 27/2009 concerning the People’s Consultative Assembly, House of Representatives, Regional Representative Council and Regional Houses of Representatives, Article 2 of Presidential Regulation 61/2005, Article 60 letter b and Article 103 paragraph (1) of Decree of the House of Representatives 1/2009 concerning the Rules and Regulations of the House of Representatives. The involvement of the Regional Representative Council in the National Legislation Program is described in Article 224 paragraph (1) letter I of Law 27/2009, which states that its involvement in legislative planning is the concern of the legislative planning committee. The Regional Representative Council will be involved if the bills included in the National Legislation Program are concerned with regional autonomy, relations between national government and regional governments, formation, boundary realignment or merger of regions, management of natural resources and other economic resources, or with the fiscal balance between national government and regional governments. 40 Article 16 paragraph (3) of Law 10/20034 and Article 6 paragraph (2) of Presidential Regulation 61/2005.

32

CHAPTER I

II. Preparation Phase In the preparation phase or drafting phase, the drafting of laws may be performed by factions, commissions, or the Legislation Committee by submitting academic papers on the bills that are to be proposed. Ultimately, all the bills will be finalised by the Legislation Committee, in terms of the technical aspects, substance, and drafting principles, which is known as harmonisation, completion, and finalisation of the conception of a bill. This finalisation must be carried out within 10 days of session of submission of the bill to the Legislation Committee (See Article 116 of the Rules and Regulations of the House of Representatives No. 1 of 2009). In this context, the role of experts41 is crucial to producing a good bill.42 By contrast, in government institutions this process is coordinated by the minister that executes governance affairs in the area of law, which is regulated by Presidential Regulation.

41 A circular on the main tasks and functions of experts issued by the Secretary General of the House of Representatives states that the function of Experts is to assist members of the House with their duties. Experts in the House of Representatives are divided into four types: Member Experts, Commission Experts, Faction Exports, and Body Experts (Body referring to the organs of the House other than the commissions, such as the Budgetary Body, Interparliamentary Body and others). In the legislative process in the House of Representatives, the role of Experts is to provide substantive and technical assistance to the House members in the preparation of a Bill. 42 A good bill refers to Appendix I of Law 12/2011 on Techniques for Drafting Academic Papers and Appendix II of the same law on Techniques for Drafting Laws, which contain systematic examples of writing good laws.

33

Introduction

Figure 6 The Preparation Process for Bills Initiated by the House of Representatives, Government, and the House of Regional Representatives

Source: Law No. 12 of 2011

In this phase bills may also be initiated by members of the House of Representatives, groups of Commissions or the Legislation Committee (see Article 46 of Law No. 12 of 2011). Bills that have been drafted complete with arguments in academic papers are then delivered to the President. For bills initiated by government, complete with academic papers, arguments and Presidential Letters, are delivered to the Leadership of the House of Representatives.43 There are at least three work environments in the National Legislation 43 Bills initiated by the Regional Representative Council concerning regional autonomy, relations between national government and regional governments, realignment of regional boundaries, natural/economic resources, and fiscal balance between national and regional governments, as described previously, that are approved then become bills initiated by the House of Representatives.

34

CHAPTER I

Program drafting process: the House of Representatives,44 the Government,45 and joint forums between the House and government. There is even a mechanism for approving the draft National Legislation Programs between the House of Representatives (Legislation Committee) and the Government (Minister of Law and Human Rights),46 which involves presenting the programs for approval at each plenary session.47 To limit the number and priority of bills that will be passed by the House of Representatives, there are criteria for bills to be included in the National Legislative Program, including: 1) Conforms to the mandate of the 1945 Constitution; 2) Relevant to the implementation of other Laws; 3) Promotes acceleration of reforms; 4) Carried forward from the previous National Legislation Program; 5) Governs protection of human rights; 6) Supports development of a fair people’s economy, and 7) Directly concerns the public interest in order to improve social welfare. There are also several criteria by which a bill that is not included in the National Legislation Program can enter the “mainstream”. These are bills that relate to international agreements, urgent bills, passing a Government 44 Article 8 and Article 9 of Presidential Regulation 61/ 2005, and Article 61, Article 104 and Article 105 of Decree of the House of Representatives 1/2009 concerning the Rules and Regulations of the House of Representatives. 45 Article 11 to Article 19 of Presidential Regulation 61/2005. 46 Article 20 to Article 24 of Presidential Regulation 61/2005 and Article 106 paragraph (1) to paragraph (9) of Decree of the House of Representatives 1/2009 concerning the Rules and Regulations of the House of Representatives. 47 Article 25 of Presidential Regulation 61/2005 and Article 106 paragraph (10) of Decree of the House of Representatives 1/2009 concerning the Rules and Regulations of the House of Representatives.

35

Introduction

Regulation in Lieu of a Law as Law, or the result of a material test ruling by the Constitutional Court. III. Discussion Phase In the discussion phase, the rules that apply refer to Article 66 and Article 67 of Law No. 12 of 2011, namely that there are two levels of discussion of bills: 1) First Reading Stage in Commission meetings, Joint Commission meetings, Legislation Committee meetings, Budget Committee meetings, or Special Committee meetings; and 2) Second Reading Stage in Plenary Meetings. First Reading Stage involve a series of activities, including preliminary consultations, discussion of the Problem Inventory List of a Bill (Daftar Inventaris Masalah – DIM),48 and mini presentation of opinions. Referring to Article 138 paragraph (1) of the Rules and Regulations of the House of Representatives, First Reading Stage are held during Working Meetings, Working Committee Meetings, Small Team Meetings, and/or Synchronisation Team Meetings. At Synchronisation Team Meetings, the team has the job of synchronising the draft of the bill by taking into account decisions of working meetings, working committee meetings, and the draft produced by the drafting team and the minister, who is represented by an echelon I official who has expertise in the material of the bill being discussed. The synchronised bill is then reported to a working meeting for 48 The Problem Inventory List is presented during the Discussion Phase of the legislative process. For bills initiated by the House of Representatives, this list is prepared by government via the relevant ministries within 60 days (see Article 49 paragraph (2) of Law 12/2011). Conversely, the list is prepared by the House of Representatives if the bill is initiated by government (See Article 50 paragraph (3) of Law 12/2011).

36

CHAPTER I

a decision to be taken by the chair of the meeting.49 Then the Steering Committee,50 which is a permanent organ of the House of Representatives decides which other organs will discuss the bill; whether it be a Commission, Special Commission or the Legislation Committee. During this discussion phase, the Commission or Special Commission or the Legislation Committee may form a Working Team to discuss substance that has not been approved. This working team forms a small team to work on the editing. It also forms a small team to synchronise the bill with the outputs of previous meetings. Decision making is the end of the First Reading Stage. The output of the First Reading Stage is then elevated to the Second Reading Stage for a decision to be made at a Plenary Meeting.51 With regard to discussion time limits, Article 141 paragraph (1) and jo Article 138 paragraph (1) of Regulation of the House of Representatives No. 1 of 2009 concerning the Rules and Regulations of the House of Representatives governs the duration of discussion of a bill, setting a time limit of two periods of session, as scheduled by the Consultative Body, which may extend the time limit on the written request of a commission 49 Article 147 of the Rules and Regulations of the House of Representatives. 50 The Consultative Body comprises a maximum of 1/10 of the total number of members of the House of Representatives, with a proportional number of members from each faction as decided by a plenary meeting. The tasks of the Consultative Body including setting the agendas of the House of Representatives for a one-year session, one session period, or a part of one session period; estimating the timeframe for resolution of a problem; and the timeframe for finalisation of a law, without undermining the authority of the plenary meeting to make changes to these and to determine the handling of a bill or implementation of another task of the House of Representatives by an organ of the House (see Article 90 Law 27/2009 concerning the People’s Consultative Assembly, House of Representatives, Regional Representative Council and Regional Houses of Representatives. 51 Article 149 and Article 150 of the Rules and Regulations of the House of Representatives.

37

Introduction

chair, joint commission chair, leader of the Legislation Committee or special committee chair by a maximum of one session period. Thus, to comply with these regulations, members of the House must do good planning, preparation and discussion, while consistently prioritising the quality of the law produced. IV. Approval Phase Prior to the approval phase, the Second Reading Stage undertaken by members of the House of Representatives. At this stage, the discussion only involves decision making, which is done by a Plenary Meeting of the House. This plenary meeting includes presenting a report that describes the process, a summary of faction opinion, summary of Regional Representative Council’s opinion (if the bill concerns relations between national and regional governments), and the output of the First Reading Stage (see Article 69 of Law No. 12 of 2011). Then verbal statements of approval or rejection from each faction and member are made on the request of the chair of the plenary meeting; and then the final decision of the President is delivered by the minister charged with this task.52 The approval phase is in within the scope of authority of the executive, not of the House of Representatives. This is because approval involves the signing of the Law by the President. A bill that is jointly approved by the House of Representatives and the President is presented by the Leader of the House to the President to be ratified as Law (see Article 72 paragraph 1 of Law No. 12 of 2011). The bill must be presented within seven days of the date of its joint approval (See Article 72 paragraph 2 Law No. 12 of 2011). 52

38

Article 69 paragraph (1) of Law No. 12 of 2011.

CHAPTER I

V.

Enactment Phase

Next is the enactment phase, pursuant to Article 81 of Law No. 12 of 2011, which states that statutes must be enacted by promulgation in: 1) State Records of the Republic of Indonesia (Lembaran Negara Republik Indonesia); 2) Supplement to the State Records of the Republic of Indonesia (Tambahan Lembaran Negara Republik Indonesia); 3) State Gazette of the Republic of Indonesia (Berita Negara Republik Indonesia); 4) Supplement to the State Gazette of the Republic of Indonesia (Tambahan Berita Negara Republik Indonesia); 5) Regional Records (Lembaran Daerah); 6) Supplements to Regional Records (Tambahan Lembaran Daerah); 7) Regional Gazettes (Berita Daerah). Therefore, the enactment phase involves assigning the law a registration number, which is then recorded in the state records and the supplement to the state records by the State Secretariat (Sekretariat Negara Republik Indonesia). Legislation comes into effect and is legally binding on the date of its enactment, unless otherwise specified in the statute.53

53

Article 87 of Law No. 12 of 2011.

39

Introduction

40

CHAPTER II

CHAPTER II NATIONAL LEGISLATION PROGRAM OF THE 2009-2014 HOUSE OF REPRESENTATIVE For the new 2009-2014 period, the House of Representatives has a new political composition. The Democrat Party faction, which in the previous period held only 57 seats, this period has 148 seats. Next is the Golkar Party faction with 106 seats, followed by the Indonesian Democratic Party of Struggle faction with 94 seats, the Prosperous Justice Party faction with 57 seats, the National Mandate Party faction with 46 seats, the United Development Party faction with 38 seats, the National Awakening Party faction with 28 seats, the Gerindra Party faction with 26 seats, and the Hanura Party faction with 17 seats.54

54 Amalia Puri Handayani (ed), Berharap pada 560: Catatan Kinerja DPR 2009-2014 (“Hopes for the 560: Notes on the Performance of the House of Representatives 2009-2014”) (Jakarta: Pusat Studi Hukum dan Kebijakan, 2011), pp 11-12.

41

National Legislation Program of the 2009-2014 House of Representatives

Figure 7 Factions in the House of Representatives (2009-2014)

Source: General Election Commission, 2009 2011 was the second year of office of the House of Representatives in the 2009-2014 period. There was high public expectation that the House would perform better than it did the previous year. Ideally, in the first year, the Indonesian public can pin their hopes on the 560 members of the House that they elected directly through the general election mechanism. In the second year, there should be some measure of success or progress towards fulfilling these hopes, or otherwise.55 The first year gives the members of the House enough time to adjust themselves to the type and substance of the work they will be doing, bearing in mind that 60 percent of House members in the 2009-2014 have a minimum of political experience.56 The legislative productivity of House members in terms of the number of 55 Fajri Nursyamsi et al., “Catatan Kinerja DPR 2011, Legislasi: Aspirasi atau Transaksi?” (Notes on the 2011 Performance of the House of Representatives, Legislation: Aspirations or Transactions”) Jakarta: Centre of Legal and Policy Studies, Indonesia, 2012. 56 Amalia Puri Handayani (ed), “Berharap pada 560: Catatan Kinerja DPR 2009 – 2010 (Hopes for the 560: Notes on the Performance of the House of Representatives 2009-2014), Jakarta: Pusat Studi Hukum dan Kebijakan Indonesia, 2011, p 11.

42

CHAPTER II

bills in the National Legislation Program finalised, differed little from 2010 to 2011, at 23% in 2010 and 26% in 2011. By comparison, legislative productivity of the 2004-2009 House of Representatives in its second year of office (2006) was higher, with 51% of the National Legislation Program completed. This was because much of the legislation produced arose from the realignment of regional boundaries, which did not require prolonged discussion. In fact the legislative productivity of the House members in 2011 is better seen in terms of the increase in the ratification of non-cumulative laws (laws other than those concerning the state budget or ratification of international conventions). In 2010, seven non-cumulative laws were approved, compared with 19 in 2011. Of these 19 non-cumulative laws approved in 2011, 18 were laws carried forward from 2010, and only one was from the 2011 National Legislation Program. Therefore, it can be said that 95% of non-cumulative laws that were approved in 2011 took more than three session periods. Bills that took a long time to discuss and involved many issues of public interest included the Legal Aid Bill, the Bill on Low-Cost Housing, Bill on the Social Insurance Executing Agency, and the Bill on the Financial Services Authority.57 This is clearly in contravention of the internal rules and regulations approved by the House itself. As Article 141 of the Rules and Regulations of the House of Representative states, discussion of a bill must take no longer than two periods of session, with the possibility of an extension of one period of session. In essence, the 2011 National Legislation Program should be a portrait 57 Fajri Nursyamsi, Mengembalikan Fungsi Prolegnas sebagai Instrumen Perencanaan Legislasi, (Reinstating the Function of the National Legislation Program as a Legislative Planning Instrument) Majalah Parlementaria, Edition 89, Vol. XLII, 2011.

43

National Legislation Program of the 2009-2014 House of Representatives

of the legislative policy or substance of national legal policy to achieve State goals within a set time period, both in terms of making new laws and in terms of revoking or replacing existing laws. As mentioned above, the National Legislation Program is divided into long-term, medium-term and short-term programs. The priority bills in the 2011 National Legislation Program are, therefore, the second year priorities from the 2010-2014 Medium-Term National Legislation Program. With regard to the policy direction of the 2011 National Legislation Program, the House of Representatives and government had already determined the basis that would provide the direction and policy for preparation of the National Legislation Program. For the 2011 National Legislation Program, the direction and policy is determined by three factors: the Government Work Plan (Rencana Kerja Pemerintah), people’s need for legislation, and implementation of the previous year’s National Legislation Program (2010). From these three factors, the Legislation Committee then formulated a five-point policy directive. These five points, which can be used as the benchmark for evaluating the achievement of the 2011 National Legislation Program, are:58 1) Accelerate fair economic growth by prioritising development of education, health, food security, infrastructure and energy; 2) Build synergy between national and regional governments; 3) Revise problematic laws and those that are not synchronised, overlapping, inconsistent, open to interpretation, unworkable, high 58 Fajri Nursyamsi et al., “Catatan Kinerja DPR 2011, Legislasi: Aspirasi atau Transaksi?,” Notes on the 2011 Performance of the House of Representatives, Legislation: Aspirations or Transactions”) Jakarta: Centre for Legal and Policy Studies, 2012, p 4.

44

CHAPTER II

cost, or delay development; 4) Reform law in Indonesia in the interests of creating justice for all the people of Indonesia; and 5) Take into account the 2010 National Legislation Program. Preparation of the 2011 National Legislation Program beginning with the setting of this direction and policy was the correct course of action. However, this direction and policy was simply a formality.59 Classified by substance, the 2011 priority bills can be divided into 17 categories, as follows:60 Table 2 The 2011 National Legislation Program Classified by Substance

No 1

Category Investment and Business Finance

Total 13

No 10

12

11

8 8 7

12 13 14

6 7

Law State Institutions Information and Technology Social Affairs Health

7 5

15 16

8

Defence

5

17

9

Spatial Planning

4

2 3 4 5

Politics

Category

Government and Bureaucracy Reform Education and Culture Women Infrastructure and Communications Establishment of Courts The Environment and Natural Disasters Agriculture and Food Security

Total 4 4 4 3 3 2 2 2

Source: Centre for Legal and Policy Studies, 2012 59 60

Ibid, p 4. Ibid, p 5.

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National Legislation Program of the 2009-2014 House of Representatives

The table above shows that the largest portion of bills in the 2011 National Legislation Program were in the investment and business category, with a total of 13 bills. Next was the finance category, with 12 bills, then the law and state institutions categories, with eight bills each. This demonstrates that the main priority was given to the economic sector in preparation of the 2011 National Legislation Program. The priority bills in the 2011 National Legislation Program could also be classified into three larger categories: (1) Politics, law and human rights, with a 36% share; (2) The economy and finance, with a 30% share; and (3) Public welfare, with a 34% share.61 From this classification it can be concluded that most bills are in the politics, law and human rights category, with a total of 33 bills or 36% of the total. Public welfare comes second, with 32 bills or 34% of the total; and finally the economy and finance, with 28 bills or a 30% share. For clarity, classification into these three main categories is shown in the pie chart below:

61

46

Ibid, p 6.

CHAPTER II

Figure 8 Three Main Categories of Priority Bills in 2011

Source: Centre for Legal and Policy Studies, 2012 Based on this classification, it would appear that the economy and finance is not the category with the most bills. Based on the other classification, however, the investment, business and finance categories had the most bills. In other worlds, bills in the politics, law and human rights category have been distributed across several other, smaller categories. This, therefore, is evidence of a conflict between priorities in the National Legislation Program and the development priorities set by government in the Government Work Plan. Also, it can be said that in 2011 the House of Representative and government failed to prepare a National Legislation

47

National Legislation Program of the 2009-2014 House of Representatives

Program that matched Indonesia’s development priorities for 2011.62 Furthermore, compared with the 2010 National Legislation Program, there has been a change in the composition of the bills. In 2010, the category with the most bills was public welfare (38 bills or a 54% share), followed by the economy and finance (20 bills or 29%), and finally politics, law and human rights (12 bills or 17%). The diagram below shows that the largest change in composition was in the politics, law and human rights category, which increased its share from 17% to 36%. The share of the public welfare category decreased drastically from 54% to 34%, and the share of the economy and finance category remained relatively stable, going from 29% to 30%. Another change that is evident from the composition of the 2010 and 2011 National Legislation Programs, is that in 2011, there was no significant difference between the categories, whereas in 2010, there were far more bills in the public welfare category than in the other two categories. Figure 9 Three Main Categories of Priority Bills, 2010 vs 2011

Source: Centre for Legal and Policy Studies, 2012 62

48

Ibid, p 6.

CHAPTER II

Regarding the composition of non-cumulative bills in the 2011 National Legislation Program, as mentioned previously, 17 categories are used to classify the 93 bills. However, bills in only eight of these categories were passed, although not all. These eight categories of bills in the 2011 National Legislation Program that were approved were as follows: Table 3 The Eight Categories of Approved Bills in the 2011 National Legislation Program

No 1 2 3 4 5 6 7 8

Category Information and Technology State Institutions Law Investment and Business Finance Social Affairs Defence Politics

Number of Bills 2 2 3 3 4 3 1 1

Percentage 10% 11% 16% 16% 21% 16% 5% 5%

Source: Centre for Legal and Policy Studies, 2012

49

National Legislation Program of the 2009-2014 House of Representatives

Figure 10 Categories of Approved Bills in the 2011 National Legislation Program

Source: Centre for Legal and Policy Studies, 2012

There were nine other categories in which bills were not approved: health, women, spatial planning, governance and bureaucracy reform, establishment of courts, the environment and natural disasters, agriculture and food security, education and culture and infrastructure. Analysis performed by the Centre for Legal and Policy Studies, found that several of these nine categories clearly fell within one or other of areas of the policy and direction of the 2011 National Legislation Program. The first point in this policy and direction is “accelerate fair economic growth by prioritising development of education, health, food security, infrastructure and energy”. Given that no bills in these areas were approved, it can be said that the House of Representative and government failed to realise even one of the directions and policies of the 2011 National Legislation Program.63 Evaluating the bills approved in the 2011 National Legislation 63

50

Ibid, p 9.

CHAPTER II

Program, it can be concluded that the National Legislation Program as a legislative planning instrument is not guaranteed to have any connection with development priorities nor even with the policy direction of the National Legislation Program itself.64 In 2012, the priorities of the National Legislation Program are the third year priorities of the 2010-2014 Medium-Term National Legislation Program. By declaring 2012 as the year of legislation, it is expected that there will no longer be a significant gap between target and the actual number of bills produced by the members of the House of Representatives. Although the target number is not realistic, the members of the House remain optimistic about getting through this heavy workload.65 The 2012 National Legislation Program comprises 64 priority bills, including 42 bills initiated by the House of Representatives and 22 initiated by government, as well as five open cumulative bills.66 Of these bills, 16 are at the First Reading Stage, and for eight of these the duration of the discussion has been extended from two periods of session to three. These bills include:67 1) The National Security Bill; 2) The Bill on the Special Nature of the Special Region of Yogyakarta; 3) The Bill on Juvenile Criminal System; 4) The Bill on the Prevention and Eradication of Illegal Logging;

64 Ibid, p 10. 65 Prolegnas 2012: Optimis dengan Beban Berat, Majalah Parlementaria, Edition 89 Year XLII, 2011. 66 Daftar Program Legislasi Nasional Rancangan Undang-Undang Prioritas Tahun Anggaran 2012 (Priority Bills in the National Legislation Program for the 2012 Fiscal Year), Majalah Parlementaria, Edition 89 Year XLII, 2011. 67 Prolegnas 2012: Optimis dengan Beban Berat, Majalah Parlementaria, Edition 89 Year XLII, 2011.

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National Legislation Program of the 2009-2014 House of Representatives

5) The Higher Education Bill; 6) The Medical Education Bill; and 7) The Bill on Management of Social Conflict. The composition of the 2012 priority bills by three main categories is shown in the pie chart below: Figure 11 Three Main Categories of Priority Bills in 2012

Source: Centre for Legal and Policy Studies, 2012

Comparing the 2010 National Legislation Program and the 2011 National Legislation Program it can be concluded that there has been a significant change in proportion of bills in the public welfare category, rising from 34% in 2010 to 44% in 2012. In the economy and finance category, the proportion decreased, from 30% in 2011 to 22% in 2012. The proportion of bills in the politics, law and human rights category remained fairly stable, at 36% in 2011 and 34% in 2012. 52

CHAPTER II

Figure 12 Three Main Categories of Bills in the 2010, 2011 and 2012 National Legislation Programs

Source: Centre for Legal and Policy Studies and The Habibie Center, 2012

The Chair of the Legislation Committee of the House of Representatives Ignatius Mulyono views with optimism the workload of 70 bills in the 2012 National Legislation Program.68 During the 2011-2012 third session, the activities of the House of Representatives were divided into two groups: the legislative activities (60%) and the budgetary and supervisory activities (40%). These two groups of activities are dealt with in turn on a weekly basis, including the schedules for plenary meetings, faction meetings, body meetings, and team meetings. This allocation of activities will be adjusted to accommodate the budget debates in Sessions I and IV.69 68 Prolegnas 2012: Optimis dengan Beban Berat, (The 2012 National Legislation Program: Optimistic Despite Workload) Majalah Parlementaria, Edition 89, Year XLII, 2011. 69 Ibid.

53

National Legislation Program of the 2009-2014 House of Representatives

In reality, the performance of the legislative function of the House of Representatives pales in comparison to the performance of its supervisory function. Since 2010 alone, the House has formed no less than 32 working committees to perform supervisory functions. Formation of these working committees, often with little regard for norms, is undermining the quality of the legislation produced. The absence of members of the House from discussion meetings because they coincide with working committee meetings also breaks the concentration of members of the House. Naturally, all the functions of the House are of equal importance. However, as a Legislation Committee, it must be emphasised that focus should to be placed on its legislative function.

54

CHAPTER III

CHAPTER III POLICY RESEARCH FINDINGS In the context of this policy research, quantity is the main focus, because this provides an initial picture of the legislative performance of the House of Representatives. The basis of the legislative process in the House of Representatives is shaped by Law No. 12 of 2011 concerning Lawmaking as the main implementing regulation of Article 22A of the 1945 Constitution, which states that “Provisions concerning legislative procedures will be further regulated by law.” Historically, Law No. 12 of 2011 is a revision of Law No. 10 of 2004 on Lawmaking, which had several weaknesses:70 1) The material of Law No. 10 of 2004 gave rise to many different interpretations, and as such did not provide legal certainty; 2) There were many inconsistencies in the text; 3) There was new material needed to be regulated to reflect developments or legal requirements in lawmaking; and 4) The material needed to be regulated systematically in each chapter. As a revision of Law No. 10 of 2004, Law No. 12 of 2011 contained new, additional material, including: 1) Addition of decrees of the People’s Consultative Assembly as a type of legislation and their position in the hierarchy after the 1945 Constitution; 70 Elucidation to Law 12/2011 concerning Lawmaking , Jakarta: Secretary General of the House of Representatives, p 1.

55

Policy Research Findings

2) Expansion of the scope of legislative planning to include not only the National Legislation Program and Regional Legislation Programs, but also planning of Government Regulations, Presidential Regulations, and other legislations; 3) Regulation of the mechanism for discussion of bills concerning revocation of government regulations in lieu of laws; 4) Regulation of academic papers as a requirement in the preparation of bills or draft provincial government regulations and draft district/ municipal government regulations; 5) Regulation of participation in legislative planning, and participation of researchers and experts in the preparation phase; and 6) Addition of techniques for drafting academic papers in the addendum to this law. In general, Law No. 12 of 2011 contains material that is organised systematically, as follows:71 1) Principles of lawmaking; 2) Type, hierarchy and material of legislation; 3) Legislative planning; 4) Legislative drafting; 5) Techniques of legislative drafting; 6) Discussion and approval of bills; 7) Discussion and approval of provincial government and district/ municipal government legislation; 8) Enactment of legislation; 9) Distribution; 71

56

Ibid.

CHAPTER III

10) Public participation in lawmaking; and 11) Other provisions pertaining to drafting of decrees of the President, state institutions, and other organs of government. In addition to the new material in Law No. 12 of 2011, there was also a revision of lawmaking techniques and of the examples presented in Appendix II. The purpose of this to provide clarification and clearer and more certain guidelines, accompanied by examples of lawmaking, including regional legislations.72 With regard to the format of academic papers, Law No. 12 of 2011 provides no standard format. Prior to Law No. 12 of 2011, the reference for preparing academic papers were regulations of the Ministry of Law and Human Rights, in which the format was sourced from ministerial regulations.73 Law No. 12 of 2011 provides uniformity in the format of academic papers that are submitted with bill initiated by government and bills initiated by the House of Representatives.74 In addition to Law No. 12 of 2011, also used as a reference in the production of legislation is Regulation of the House of Representatives No. 1 of 2009 concerning the Rules and Regulations of the House of Representatives. This regulation provides a reference for the tasks for the organs of the House that are carried out by commissions, the Legislation Committee, and special committees formed by the House. In the preliminary stage, the process for inclusion of bills in the National Legislation Program is as 72 Ibid. 73 From focus group discussion I, statement made by a member of the legislative drafting staff in the Secretary General of the House of Representatives, 24 February 2012. 74 From focus group discussion I, statement made by an expert in the Legislation Committee of the Secretary General, House of Representatives, 24 February 2012.

57

Policy Research Findings

follows:

Figure 13 Process for Inclusion of Bills in the National Legislation Program

Source: Bureau of Legislative Planning, Secretary General of the House of Representatives, undated

In reality, however, the lawmaking process does not always observe the flow outlined in the relevant regulations. From the research policy findings, the research team identified several weak spots in the legislative process that contribute to the backlog of bills. More specifically, the sluggishness of the legislative process is, to some extent, a consequence of phases of the legislative process that the House of Representatives itself agreed. Referring to Articles 109-119 of the Rules and Regulations of the House, particularly in the context of bills initiated by commissions, ideally the legislative process should be as follows: 58

CHAPTER III

Figure 14 Legislative Process for Bills Initiated by Commissions

Source: Bureau of Legislative Planning, Secretary General of the House of Representatives, undated

The findings of the research indicate that the prolonged process of passing bills to laws contributes to the sluggishness of the legislative process, particularly in the mechanism in the House of Representatives. These delays in the legislative process occur in the (I) planning phase, (II) preparation phase, and (III) discussion phase. I. Planning Phase In the planning phase, the research team found that a frequent problem is with the unrealistic nature of the planning process itself. As described previously, the House of Representatives has managed to set high targets since 2005, but in reality it has not produced many legislative 59

Policy Research Findings

products; and this is the case, year in year out. The term “unrealistic” as it applies here to the planning process means that there is always a significant gap between the target and actual number of bills produced by the House. In 2011, the House of Representatives only managed to complete the discussion of 25% of the target number of bills. The House planned to finalize 70 new bills in 2011, along with 23 bills left over from the 2010 National Legislation Program, for a target of 93 bills to be passed to law. However, the House only managed to finalise 24 bills. II. Preparation Phase In the preparation phase, the absence of preliminary drafts of bills or academic papers or terms of reference also contributes to the sluggishness of the legislative process, in addition to the argument that initiation of bills is largely motivated by political interests.75 The absence of academic papers makes discussion of the bills difficult, which greatly prolongs the discussion phase.76 Another delaying factor emerges when the time comes to submit a draft bill or academic paper for a bill simply because it is the opinion of members of the House that the bill should be included, or otherwise, in the National Legislation Program—based not on people’s needs, but rather on constituent ‘demand’. This brings into question the culture of the members of the House, which in turn shapes their view of the importance of an academic paper accompanying a bill.77 Lamentably, there is no legal consequence in Law No. 12 of 2011 for this absence of academic 75 76 77

60

Interview with Ganjar Pranowo (Commission II/PDIP faction) on 24 January 2012. Interview with Abdul Hakam Naja (Commission II/PAN faction) on 1 February 2012. From focus group discussion III, statement made by P3DI researcher, 13 March 2012.

CHAPTER III

papers. Article 44 of Law No. 12 of 2011 merely mentioned the techniques for drafting academic papers. Moreover, often as not that bill is drafted in the middle of the year, which does not leave enough time for it to be discussed that session.78 As mentioned above, political motivation is to be expected because their representation in the House of Representatives has the backing of political parties. The problem arises when representation of people’s aspirations is not the priority of members of the House when making decisions about the submission of a bill, which should be based on public interests, not political party interests. III. Discussion Phase In the discussion phase, facts indicate that members of the House of Representatives who are members of the Legislation Committee do not have sufficient time for their work in the Legislation Committee because other parliamentary duties in the commissions take up a great deal of time and energy.79 As a consequence, discussion of bills is often postponed because of the members of the Legislation Committee are also members of commissions, which interferes with the scheduling of meetings. If this multi-tasking is kept up, the legislative performance of the House will never change.80 Ultimately, meetings are frequently postponed because members have two meetings scheduled for the same time, which means that meetings do not run on time or are 78 Interview with Reni Marlinawati (Commission X/PPP faction) on 24 January 2012. 79 Interview with Abdul Hakam Naja (Commission II/PAN faction) on 1 February 2012. 80 Pola Rangkap Tugas Tetap Dipertahankan, Kinerja Legislasi Dean Tidak akan Berubah, (If Multitasking Continues, the Legislative Performance of the House will Never Change) Malajah Parlementaria, Edition 89 Year XLII, 2011.

61

Policy Research Findings

inquorate.81 In the discussion phase, harmonisation is a frequent subject of complaint by members of the House. The harmonisation process is the initial stage of the planning stage and concluding stage of the discussion phase. During the preparation phase, harmonisation, completion and finalisation of the concept is carried out by the Legislation Committee on bills that are due to be discussed. In the next phase of the process, at the end of the discussion phase, this harmonisation process often needs to be repeated to take into account the outputs of working meetings during the discussion process. But sometimes, a draft bill that has been discussed is overturned, which inevitably slows the passage of a bill to law. Figure 15 Process of Harmonizing Bills

Source: Bureau of Legislative Planning, Secretary General of the House of Representatives, 81 Report of the Research Team Findings on Improving the Performance of the House of Representatives of the Republic of Indonesia, “Reformasi DPR RI,” (“Reforming the House of Representatives,”) Jakarta: December 2006.

62

CHAPTER III

undated

Furthermore, still in the discussion phase, the research team also found that the backlog of bill is also due to inadequate expert support. In brief, the roles of experts in legislative drafting can be outlined as follows: 1) Conducting research, 2) Preparing academic papers and draft bills (including legislative drafting), and 3) Assisting in discussion of bills in the Legislation Committee/ Commissions/Joint Commissions/Special Committees. With regard to these tasks, in several of the commissions in particular, expert staff are sorely lacking in capacity, especially in legislative drafting. Having expert staff with competence in legislative drafting is vital to accelerating discussion and passing of laws.82 However, in terms of quantity, the current number of expert staff is sufficient. Each Commission gets support from seven expert staffs, and an additional one person for each member, as well as experts from the House Secretariat General’s Center for Research, Data and Information Management and the Deputy Secretary General for Legislation Affairs.83 Another problem that arises in the discussion phase is the habit of the large majority of House members of turning up late to meetings 82

83

Interview with Abdul Hakam Naja (Commission II/PAN faction) 1 February 2012.

Sinergi Tenaga Ahli diperlukan untuk Mendukung Kinerja anggota DPR RI, Komisi X, (Synergy of Experts Needed to Improve the Performance of members of House of Representatives Commission X) 12 January 2011, http://www.dpr.go.id/id/berita/komisi10/2011/jan/13/2298/sinergi-tenaga-ahli-diperlukan-untuk-mendukung-kinerjaanggota-dpr-ri, accessed 1 February 2012. 63

Policy Research Findings

or not turning up at all. This bad habit undermines awareness of the importance of discussing bills in meetings and sessions. This lack of discipline on the part of members of the House about attending meetings and sessions seems to have become a distinctive feature of parliamentary performance in Indonesia.84 The key to exacting discipline from members of the House in fact lies in the factions, because the factions have the authority to admonish members for being undisciplined. If a faction insists that members must turn up to meetings on time, the members will comply.85 This is because members of the House are an extension of the political party that supports them, which means they tend to defer to their political party rather than to the voters who elected them. IV. Approval Phase The research team found that, in the final stage before the approval phase, members of the House need to hold a public hearing of a bill that has been discussed in the discussion phase. The problem with public hearings lies in the large volume of input from the public, which presents technical issues regarding use of language and so on. It should be possible to address these technical issues by giving the public immediate access to draft bills that have been discussed in the House of Representatives. This has implications for public access to information to enable people to follow developments in the discussion 84 Interview with Didi Irawadi (Commission III/PD faction), 29 February 2012. 85 BK: Kunci Kedisiplinan Anggota DPR ada di Fraksi (The Legislation Committee: Key to the Discipline of House Members Lies in the Factions), Tuesday, 12 March 2012, http://www. republika.co.id/berita/nasional/politik/12/03/06/m0gghi-bk-kunci-kedisiplinan-anggota-dpr-ada-difraksi, accessed 14 February 2012.

64

CHAPTER III

of bills, which is currently inadequate. This is evident from the House of Representatives website, on which progress in the discussion of bills is not updated. This problem with access to information about developments in the discussion of bills causes delays in getting input from the public about a bill. In fact, public hearings would be more useful if members of the public were able to give input on substantive issues about a draft bill while it is being discussed, and this would be possible if the public had rapid access to information about the progress in the discussion of a bill, by optimising the function of the House of Representatives’ website. In conclusion, the findings of this policy research indicate that delays occur at various stages in the legislative process, which could have a significant impact on the passage of legislation in the House of Representatives. These delays occur in the initial drafting, at the end of the discussion phase, and in the stage prior to approval (public hearings). A visual representation of the bottlenecks in the legislative process in the House of Representatives that contribute to the backlogging of bills is as follows:

65

Policy Research Findings

Figure 16 Bottlenecks in the Current Legislative Process

Source: The Habibie Center, 2012

66

CHAPTER IV

CHAPTER IV POLICY RECOMMENDATIONS 2012 has been declared the year of legislation, as Speaker of the House of Representatives Marzuki Alie announced in his opening session speech, without any indication of the targets that are expected to be achieved.86 This is evident from the findings of research on the legislative process in the House of Representatives. Presentation of these research findings has led The Habibie Center research team to making a number of policy recommendations, which it is hoped the relevant parties will take on board. From the research findings based on the results of literature review, and in-depth interviews and focus group discussions with members of the House of Representatives, the research team was able to describe and analyse the problems facing the House, both in terms of structure and the legislative process. In response, the research team proposes a number of recommendations as input for improving the legislative performance of the members of the House of Representatives. FIRST RECOMMENDATION Finding: In the planning phase, the research team found incomplete planning to be a common problem. This is evident from the fact that many bills in the National Legislation Program are not accompanied by academic papers concerning the relevance of these bills. The absence of academic papers makes discussion of the bills difficult, which greatly prolongs the 86 ������������������������������������������������������������������������������� Prolegnas 2012: Optimis dengan Beban Berat, (The 2012 National Legislation Program: Optimistic Despite Workload) Majalah Parlementaria, Edition 89, Year XLII, 2011.

67

Policy Recommendations

discussion phase.87 Unfortunately, there is no legal consequence for failing to include academic papers in the submission of these bills. Recommendation: The research team recommends that bills in the National Legislation Program agenda be accompanied by academic papers on the relevance of the substance of the bill concerned. This would make inclusion of bills in National Legislation Program agenda more selective and facilitate their further discussion. Therefore, the research team sees a need for intensive dissemination to all members of the House of Representatives and all ministries the importance of academic papers accompanying each bill, as mandated by Law No. 12 of 2011 in Lawmaking. Pursuant to Law No. 12 of 2011, the outline of an academic paper comprises (1) Title; (2) Foreword; (3) Table of contents; (4) Introduction; (5) Theoretical and empirical review, evaluation and analysis of relevant legislation; (6) Philosophical, sociological and juridical basis; (7) Reach, direction and scope of the material embodied in the law, provincial government regulation or district/municipal government regulation; (8) Conclusion; (9) Bibliography, and (10) Appendices.88 This academic paper outline should be periodically disseminated to members of the House in order to build their knowledge and awareness of the importance of these academic papers. To do this, the House of Representatives needs to create a law centre that has lines of coordination with the Legislation Committee.89 If members of the House, factions, and commissions need an academic paper for a 87 Interview with Abdul Hakam Naja (Commission II/PAN faction) on 1 February 2012. 88 Law 12/2011 concerning Lawmaking . 89 Interview with Ahmad Yani (Member of Commission III and member of the Legislation Committee/PPP faction) on 25 January 2012.

68

CHAPTER IV

bill, they could seek help from this law centre. Also, the law centre could play a part in harmonizing laws by bringing in professionals from various disciplines. Having a law centre that harmonises laws would meet the need for comprehensive academic papers to accompany bills, rather than it taking up time in the preparation phase and in the discussion phase.90 As a comparison, the United States Congress is supported by legislative experts from two institutions: the Office of the Legislative Counsel and the Congressional Research Service. The former consists of legal experts and legislative drafters who work permanently in the United States Congress.91 The latter provides data and information for discussion of bills,92 and consists of doctoral researchers how have decades of experience working in the United States Congress. SECOND RECOMMENDATION Finding: A problem that occurs in the discussion phase is that members of the House of Representatives who are members of the Legislation Committee do not have enough time and energy to complete their tasks, because they are so busy with their other parliamentary duties in their respective commissions.93 As a result, discussions of bills are often postponed because members of the Legislation Committee double as members of the commissions, making it difficult to schedule meetings. Ultimately, meetings are frequently postponed because members have two meetings scheduled for the same time, which means that meetings do 90 91 92 93

Ibid. www.slc.senate.gov, accessed 30 April 2012. www.loc.gov/crsinfo, accessed 30 April 2012. Interview with Abdul Hakam Naja (Commission II/PAN faction) on 1 February 2012.

69

Policy Recommendations

not run on time or are not in quorum.94 Recommendation: To maximise the performance of the Legislation Committee, thought needs to be given as to how ensure that members of the Legislation Committee are not those who are members of a commission. This would mean that they would have enough time and energy to complete the workload in the Legislation Committee. One way of doing this is to have legislative experts and other experts, rather than members of the House of Representatives, as the members of the Legislation Committee. If the Legislation Committee is not populated with legislative experts and other experts, the research team is convinced that there will be no significant change in the legislative performance of the House of Representatives. Members of the House who are members of the Legislation Committee do not have enough time and energy to complete their tasks, because they are so busy with their other parliamentary duties in their respective commissions.95 THIRD RECOMMENDATION Finding: In connection with the second finding, that delays in the legislative process are also due to inadequate expert support; in several Commissions expert staff are sorely lacking in capacity, especially in legislative drafting.96 Having expert staff with competence in legislative 94 Report of the Research Team Findings on Improving the Performance of the House of Representatives of the Republic of Indonesia, “Reforming the House of Representatives”, Jakarta: December 2006. 95 Pola Rangkap Tugas Tetap Dipertahankan, Kinerja Legislasi Dean Tidak akan Berubah, (If Multitasking Continues, the Legislative Performance of the House will Never Change) Majalah Parlementaria, Edition 89 Year XLII, 2011. 96 Interview with Ferdiansyah (Commission X/Member of Legislation Committee/Golkar faction) on 10 February 2012.

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drafting is vital to accelerating discussion and passing of laws. However, in terms of quantity, the current number of expert staff is sufficient. Each Commission gets support from seven expert staffs, and an additional one person for each member, as well as experts from the House Secretariat General’s Center for Research, Data and Information Management and the Deputy for Legislation Affairs.97 Recommendation: Introducing profession selection could be a first step to maximising the role of experts in the House of Representatives, along with upgrading for experts in legislative drafting. This would make the expert support provided to members of the House more effective. Furthermore, the research team sees a need for training to build the quality and competence of expert staff. This would have a positive impact on the quality of the substance of bills that are to be discussed, and the legislative products that are produced will also have a more noticeable impact on the constituents who are users of related legal products. FOURTH RECOMMENDATION Finding: Another problem that arises in the discussion phase is the habit of the large majority of House members of turning up late to meetings or not turning up at all. This bad habit undermines awareness of the importance of discussing bills in meetings and sessions. This lack of discipline on the part of members of the House about attending meetings and sessions seems to have become a distinctive feature of parliamentary performance 97 Sinergi Tenaga Ahli diperlukan untuk Mendukung Kinerja anggota DPR RI, Komisi X, (Synergy of Experts Needed to Improve the Performance of members of House of Representatives Commission X) 12 January 2011,http://www.dpr.go.id/id/berita/komisi10/2011/jan/13/2298/ sinergi-tenaga-ahli-diperlukan-untuk-mendukung-kinerja-anggota-dpr-ri-, accessed 1 February 2012

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in Indonesia.98 The key to exacting discipline from members of the House in fact lies in the factions, because the factions have the authority to admonish members for being undisciplined. If a faction insists that members must turn up to meetings on time, the members will comply.99 This is because members of the House are an extension of the political party that supports them, which means they tend to defer to their political party rather than to the voters who elected them. Recommendation: With regard to the lack of discipline of members of the House of Representatives about attending meetings and sessions, the research team sees a need for the House to publish to the public the attendance lists of House members at meetings and sessions in order to inculcate in them the idea of public moral sanctions. Attendance lists of members of the House at meetings and sessions could be published in the mass media. Also, the factions need to be encouraged to impose stern sanctions on their members for lack of discipline about attending meetings and sessions in the House of Representatives. FIFTH RECOMMENDATION Finding: Public hearings are a required stage in the discussion of a bill prior to its approval. Members of the working team for the bill are required to approach the public to gather input about bills that are being discussed. The public hearing process in the regions takes at least three days. After the public hearing has been held, the working team prepares a report for 98 Interview with Didi Irawadi (Commission III/PD faction), 29 February 2012. 99 BK: Kunci Kedisiplinan Anggota DPR ada di Fraksi (The Legislation Committee: Key to the Discipline of House Members Lies in the Factions), Tuesday, 12 March 2012, http://www. republika.co.id/berita/nasional/politik/12/03/06/m0gghi-bk-kunci-kedisiplinan-anggota-dpr-ada-difraksi, accessed 14 February 2012.

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further discussion by the working team. In the opinion of the research team, public hearings run parallel to discussion of the bill. In reality, the public cannot follow developments in the discussion of bills, because this information is not updated on the information centre, which is the House of Representatives website. This problem with access to information about developments in the discussion of bills causes delays in getting input from the public about a bill, although the great variety of input or contribution from the public is vital to the discussion of bills. Recommendation: As a part of public participation, the public hearing process could be accelerated by optimising the function of the House of Representatives website as a means of opening up space for communication with the general public. Bills that are being discussed could appear on the website, facilitating and speeding the public hearing process because the public can access the information and give input at any time. RECOMMENDATIONS FOR FURTHER RESEARCH This policy research, which was conducted over a period of four months, leaves several findings that need to be studied and analysed in more depth. Due to time constraints, the policy research findings in this paper can be used as a stepping stone for further policy research. For this, the research team has formulated several recommendations for further research. 1. With regard to the absence of any legal consequences for failing to submit academic papers with bills, the research team recommends further research into amending Law No. 12 of 2011. This is because Law No. 12 of 2011 makes no mention of the legal consequences of failing to submit academic papers, thereby undermining the 73

Policy Recommendations

importance of academic papers in the submission of bill in the eyes of the members of the House of Representatives. Research has found, however, that this absence of academic papers contributes to the delay in the legislative process in the House of Representatives. 2. The research team also recommends further research on the formation or establishment of a law centre in the House of Representatives. Creating a new body as a structured institution is no easy task. To this end, the research team is very interested in the possibility of further research into the feasibility of setting up a law centre. This establishment of a law centre could be a part of a program to revitalise the House of Representatives. This revitalisation program would include finding the structure of the House of Representatives most appropriate to enabling members to effectively execute the four functions of the House without having to sacrifice one or a part of these functions. The research team also recommends further research into an automated tracking system to monitor the progress of bills. This tracking system would include a system for managing input from the public, and would need to be a part of the overall information management system of the House of Representatives. As explained in the findings of this policy research, delays in the public hearings that are held prior to the approval phase also contribute to the sluggishness of the legislative process. The delay at the public hearing stage has to do with the fact that information is not updated while a bill is being discussed, so the public are simply presented with the final draft of a bill. This requires further research into how to design a management information system 74

CHAPTER IV

that provides the public easy access information about the discussion of a bill and other information. 3. Finally, it would be interesting to follow up on the findings of internal research carried out by the House of Representatives in 2006. Further research would discuss the response of members of the House of Representatives to the findings of the internal research team presented in their report (“Reforming the House of Representatives: Report of the Findings of Research on Improving the Performance of the House of Representatives”). It would also analyse the reasons why the members of the House of Representatives failed to take notice of the findings of this research.

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BIBLIOGRAPHY Amalia Puri Handayani (ed), “Berharap pada 560: Catatan Kinerja DPR 2009 – 2010, (“Hopes for the 560: Notes on the Performance of the House of Representatives 2009-2014”), Jakarta: Centre for Legal and Policy Studies, 2011. Badan Legislasi DPR RI: Kinerja dan Evaluasi Periode 2004-2009, (The Legislation Committee of the House of Representatives: 20042009 Performance and Evaluation) published by the Legislation Committee of the House of Representatives, 2009. Bintan R. Saragih, “Strategi Memasukkan Fungsi Representasi dalam Undang-undang SUSDUK dan Tata Tertib DPR RI,” (“Strategy for Satisfying the Representation Function in the Law on the Composition and Position of the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional Houses of Representatives and the Rules and Regulations of the House of Representatives of the Republic of Indonesia”) (Main points of a paper presented at a focus group discussion between the Secretary General of the House of Representatives and UNDP, Jakarta, 5 June 2008, www.parlemen.net, accessed 1 February 2012. BK: Kunci Kedisiplinan Anggota DPR ada di Fraksi (The Legislation Committee: Key to the Discipline of House Members Lies in the Factions), Tuesday, 12 March 2012, http://www.republika.co.id/ berita/nasional/politik/12/03/06/m0gghi-bk-kunci-kedisiplinananggota-dpr-ada-di-fraksi, accessed 14 February 2012. Daftar Program Legislasi Nasional Rancangan Undang-Undang Prioritas Tahun Anggaran 2012 (Priority Bills in the National Legislation Program for the 2012 Fiscal Year), Majalah Parlementaria, Edition 89 Year XLII, 2011. DPR RI, “Reformasi Dewan Perwakilan Rakyat Republik Indonesia: Laporan Hasil Tim Kajian Peningkatan Kinerja DPR RI (Reforming the House of Representatives: Report of the Research Team 76

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Findings on Improving the Performance of the House of Representatives of the Republic of Indonesia) Jakarta: December 2006. Fajri Nursyamsi, et al., “Catatan Kinerja DPR 2011, Legislasi: Aspirasi atau Transaksi,” (Notes on the 2011 Performance of the House of Representatives, Legislation: Aspirations or Transactions”), Centre for Legal and Policy Studies, 2012. Fajri Nursyamsi, “Mengembalikan Fungsi Prolegnas sebagai Instrumen Perencanaan Legislasi,” (“Reinstating the Function of the National Legislation Program as a Legislative Planning Instrument) Majalah Parlementaria, Edition 89, Vol. XLII, 2011. Fatmawati, Struktur dan Fungsi Legislasi Parlemen dengan Sistem Multikameral: Studi Perbandingan antara Indonesia dan Berbagai Negara”, (“The Legislative Structure and Function of Multicameral Parliaments: A Comparative Study of Indonesia and Other Countries”), University of Indonesia Faculty of Law, Jakarta, 2009. Ferry Mursyidan Baldan, “Menata Alat Kelengkapan bagi Penguatan Fungsi DPR,” (“Organising State Organs to Strengthen the Functions of the House of Representatives”) presented at a workshop on “Organising Democratic, Effective and Accountable Parliament, Nusantara II Building, House of Representatives, 29 February 2012. Hanna Fenichel Pitkin, “Representation and Democracy: Uneasy Alliance,” in Scandinavian Political Studies, Vol. 27 – No. 3, 2004. Indriaswati Dyah, et al., “Penilaian Kinerja DPR dan Hak Asasi Manusia,” (“Evaluation of the Performance of the House of Representatives and Human Rights,”) ELSAM, 2009. Informasi Sekilas tentang Proses Legislasi (The Legislative Process at a Glance), Centre for Legal and Policy Studies, 6 July 2011, http:// pshk.or.id/assets/images/upload/attachment/Info_Sekilas_Proses_ Legislasi-PSHK.pdf, accessed 15 January 2012. Jimly Asshiddiqie, SH., Lembaga Perwakilan dan Permusyawaratan 77

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Rakyat Tingkat Pusat, (Tricameralism) www.jimly.com/makalah/ namafile/40/Trikameralisme_DPD.doc, accessed 4 February 2012. Jimly Asshiddiqie, Hubungan Antar Lembaga Negara Pasca Perubahan UUD 1945, (Relations between State Institutions Post Amendment of the 1945 Constitution) Presentation at State Administration Agency Intake XVII Level I Leadership Education and Training . Jakarta, 30 October 2008, presented again during a focus group discussion at LEMHANNAS, 15 November 2010. Keputusan Dewan Perwakilan Rakyat Republik Indonesia (DPR RI) tentang Peraturan Tata Tertib No. 1 Tahun 2009. (Decree of the House of Representatives of the Republic of Indonesia concerning the Rules and Regulations of the House 1/2009) Lobi RUU Pemilu Molor, Golkar Walkout, (Election Law Lobby Breakdown, Golkar Walkout) Wednesday 12 April 2012, http:// politik.vivanews.com/news/read/303739-lobi-ruu-pemilu-molor-golkar-walkout, accessed 25 April 2012. Matthew B. Miles and A. Michael Huberman, Analisa Data Kualitatif: Buku Sumber tentang Metode-Metode Baru (Qualitative Data Analysis: An Expanded Source Book), Jakarta: University of Indonesia Press, 1992. Menelisik Kajian Internal DPR dan Gagasan Socially Responsible LawMaking, 26 February 2007 (Internal House Review and the Concept of Socially Responsible Law-Making), www.hukumonline.com/ printedoc/hol16250, accessed 20 April 2012. Olle Törnquist, “Introduction: The Problem is Representation! Towards an Analytical Framework “ in Olle Törnquist, Neil Webster and Kristian Stokke (eds.), Rethinking Popular Representation, New York: Palgrave Macmillan, 2009. Partai Kecil Melawan Partai Besar (Small Political Parties Take On the Large), Kompas.com, 30 April 2012, http://nasional.kompas.com/ read/2011/11/01/06075933/Partai.Kecil.Melawan.Partai.Besar, accessed 30 April 2012. 78

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Pembukaan UUD 1945 (Preamble to the 1945 Constitution) Peraturan Presiden No. 61 Tahun 2005 (Presidential Regulation 61/2005) Pola Rangkap Tugas Tetap Dipertahankan, Kinerja Legislasi Dean Tidak akan Berubah (If Multitasking Continues, the Legislative Performance of the House will Never Change), Malajah Parlementaria, Edition 89 Year XLII, 2011. Prolegnas 2012: Optimis dengan Beban Berat, (The 2012 National Legislation Program: Optimistic Despite Workload) Majalah Parlementaria, Edition 89, Year XLII, 2011. Sinergi Tenaga Ahli diperlukan untuk Mendukung Kinerja anggota DPR RI, Komisi X (Synergy of Experts Needed to Improve the Performance of members of House of Representatives Commission X), 12 January 2011, http://www.dpr.go.id/id/berita/komisi10/2011/ jan/13/2298/sinergi-tenaga-ahli-diperlukan-untuk-mendukungkinerja-anggota-dpr-ri-, accessed 1 February 2012. Transformasi 4 BUMN Masih Jadi Ganjalan Pengesahan (Transformation of 4 State Enterprises Delays Law), 28 October 2011, http://nasional.kompas.com/read/2011/10/28/12505575/ Transformasi.4.BUMN.Masih.Jadi.Ganjalan.Pengesahan, accessed 25 April 2012. UU No. 27 Tahun 2009 tentang MPR, DPR, DPD dan DPRD. (Law 27/2009 concerning the People’s Consultative Assembly, House of Representatives, House of Regional Representatives, and Regional Houses of Representatives) William G. Andrews, Constitutions and Constitutionalism, 3rd edition, (New Jersey: Van Nostrand Company, 1968). www.loc.gov/crsinfo/ www.mediacenter.kpu.go.id www.slc.senate.gov Zubairi Hasan, “Memperbaiki Kualitas Pembentukan Undang-Undang (UU)” (“Improving the Quality of the Legislative Process”), Indonesian Journal of Legislation, Vol. 4, No. 2, June 2007. 79

LIST OF INTERVIEWEES 1. Achmad Dimyati (Legislation Committee Deputy Chair/PPP faction) 2. Malik Haramain (Commission II/PKB faction) 3. Didi Irawadi (Commission III/PD faction) 4. Reni Marlinawati (Commission X/PPP faction) 5. Abdul Hakam Naja (Commission II/PAN faction) 6. Ganjar Pranowo (Commission II/PDIP faction) 7. Ahmad Yani (Commission III/PPP faction) 8. Ferdiansyah (Commission X/Legislation Committee/Golkar faction) 9. Achmad Rubai (Legislation Committee/PAN faction)

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LIST OF FOCUS GROUP DISCUSSIONS’ PARTICIPANTS 1. 2. 3. 4. 5. 6. 7. 8. 9.

Atisa Praharini (legislative drafter) Emmanuel Tular (House of Representatives’ legislative expert) Hadi Rahman (www.jurnalparlemen.com) Nalom Kurniawan (Constitutional Court Magazine) Rizky Argana (Centre for Legal and Policy Studies researcher) Poltak Nainggolan (P3DI researcher) Riris Katharina (P3DI researcher) Harry Adi (P3DI researcher) Sabari Barus (House of Representatives’ legislative expert)

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Researchers’ Biography

RESEARCHERS’ BIOGRAPHY Aay Muhammad Furkon was born in Jakarta, March 28, 1971. Alumni of International Islamic University Malaysia 1997 at the International Relations discipline. After he finished his study, he became a journalist and he continued his studies at the Postgraduate Study of Faculty of Social and Political Science, University of Indonesia. He is Active as a researcher at the Reform Institute and Aufklarung Institute, and actively writes on a variety of media and journals. In 2004 launched a book entitled “Partai Keadilan Sejahtera, Ideologi dan Praksis Politik Kalangan Muda Islam Indonesia’, dan ‘Sejarah Universitas Pancasila.’ Bawono Kumoro was born in Jakarta, on 1 December 1984. He graduated from State Islamic University (UIN) Syarif Hidayatullah Jakarta, with Political Sciences major. During his studies, he was active as a member of Student Council of Muhammadiyah in Ciputat (2006-2007). Since college, he wrote for various printed national media such as Kompas, Seputar Indonesia, Koran Tempo, Media Indonesia, The Jakarta Post, Jurnal Nasional, and others. On March 2009, he published a book “Hamas: Ikon Perlawanan Islam terhadap Zionisme Israel”. Currently, he is pursuing his post-graduate degree in Political Communications in Paramadina Graduate School of Communication and working as a Political Researcher at The Habibie Center. Inggrid Galuh Mustikawati is researcher at The Habibie Center, Indonesia and alumni of International Islamic University Malaysia, Postgraduate Degree of Department Political Science, specialization in International 82

Researcher’s Biography

Relations. Her field of specialization is conflict management and she has published extensively in the areas of inter-group relations and peace building. She has actively conducted a series of research managed by several independent research centers. In 2012, she has published a book entitled “Helsinki Agreement and Power-Sharing in Aceh” (Germany: LAP Lambert Academic Publishing). Recently, she involves in National Violence Monitoring System (NVMS) Project as researcher funded by Worldbank. Maya Thatcher began her professional life working as a newswire journalist in London, at Thomson Reuters and Platts. After moving to Indonesia in early 2011, she switched careers to the non-profit sector, dividing her time between working as an Associate Fellow/Assistant Researcher at The Habibie Center and a freelance writer at the Center for International Forestry Research (CIFOR). She has a Master’s degree in Conflict, Security and Development from King’s College London, University of London, and a Bachelor’s in Modern History, Economic History and Politics, from Royal Holloway, University of London.

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Researchers’ Biography

84

The Habibie Center

The Habibie Center Jl. Kemang Selatan, No.98 Jakarta 12560 Tlp. (021) 7817211, Fax. (021) 7817212 [email protected] http://www.habibiecenter.or.id

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