Legislation
The Legislation Impact Analysis Failure towards the Law on Minerals and Coal
One of the most essential things in the process of legislative drafting is associated with predictions of the impact of implementing a policy set forth in the legislation. This impact analysis becomes important in the context of legislative drafting since it is strongly associated with the successful implementation of norms set in the legislation itself. The rejection of Article 103 of Law No. 4 Year 2009 on Minerals and Coal, associated with the domestic mineral refining policy (import ban), is one example of a case of failure in preparing for the impact that arose from the ban.
The legislation impact analysis should be done not only to provide an understanding of arising impacts, but should instead be poured into anticipating/preparing for those mentioned impacts. One of the manifestations in the legislation is included in transitional provisions. However, transitional provisions often only accommodate the timeframe of a specific policy, without elaborating on what then should be done in that transitioning period. This has become an error which will have an impact on the effectiveness of the implementation of norms to be compiled, especially on norms that will have impact on budgets and the public’s economic activities.
This is caused by two factors. Firstly, the failure of legislators (the House of Representatives and Government) in discussing a law comprehensively and in detail. Secondly, the paradigmatic understanding that laws are of a general nature and do not need to regulate on matters of a technical nature. These two reasons are commonly used as a basis of argument to maintain the model. In fact, in norms needing transitional provisions in their implementation, not only is the sounding of the delay period norm needed, but also defining the steps needed throughout the transitioning process so that the existing norms can be carried out effectively. (GAT)
Legislation
The Initiative of the Regional Formation Bill: Design Arrangements VS Aspiration Flow
The Plenary Session of the House of Representatives on 24 November 2013 agreed upon the establishment of 65 New Autonomous Regions (Daerah Otonomi Baru / DOB) in becoming the House of Representatives’ Proposed Initiative Bill. Then on 19 December, the House re-added 22 New Autonomous Regions Bills, bringing the total to 87. The proposal of the New Autonomous Regions Bill exhibits the same trend of increasing drastically with the elections approaching.
Based on Notes of the Indonesian Centre for Law and Policies Studies (Catatan Pusat Studi Hukum & Kebijakan Indonesia) on Legislation Performance of the House of Representatives in 2003, from 63 Laws established in the 2000-2002 period, 35 among them were associated with Regional Formation. So what about in 2003 or one year towards the 2004 Elections? From 43 Laws established, as many as 24 Bills were ones on Regional Formation. The same goes for the year 2008 (one year before the 2009 Elections); 30 Laws associated with Regional Formation were ratified out of 62 Bills.
This tendency can be traced back to the fact that around 86 New Autonomous Regions (42% of 203 New Autonomous Regions in 1999 – 2008) were established based in the House of Representatives’ initiative and are prone to political motives. Moreover, the aspiration flow of regional formation is difficult to restrain.
Each and every proposal on regional formation must be examined through comprehensive studies. The Bill on Local Governments provides general regulations and standards which include criteria, guidelines, procedures, and funding towards regions being formed. These steps need to be followed by policy reform, covering (i) transition management which include the establishment of the status of the New Autonomous Region as a preparatory region which will in the end be removed (for those considered to have failed), placement under the central management (for those considered to have succeeded; (ii) Inter-regional cooperation: it is obligatory for New Autonomous Regions to establish cooperation with surrounding regions, especially regarding the development strategies framework and public service; and (iii) the decentralization of sub-districts as the base for public service and center of economic growth. (RR)
Supreme Court
The Granting of a Judicial Review towards Sudjiono Timan by the Supreme Court
Chairman of the Supreme Court, Hatta Ali, has emphasized the legitimate granting of a Judicial Review towards the fugitive convicted of corruption, Sudjiono Timan. This Judicial Review does not contain any elements of error, moreover, oversight from the judges. The Supreme Court has granted the Sudjiono Timan Judicial Review by stating that the concerned is free of all charges. Previously, on 3 December 2004, a panel of Supreme Court justices chaired by Bagir Manan sentenced Sudjiono to 15 years in prison, a fine of Rp. 50 million and was obliged to reimburse Rp 369 billion in restitution. When about to carry out the sentences, on Tuesday, 7 December 2004, Sudjiono Timan fled and became a fugitive.
This verdict has raised a debate with the main question of the public being in regards to the commitment of the Supreme Court in eradicating corruption. Another question that has been raised is whether is possible to file a Judicial Review if the convicted person has not undergone the penalties (executions) of the court rulings.
The Supreme Court has issued Circular No. 1 Year 2012 on 28 June 2012 (Surat Edaran Mahkamah Agung / SEMA) which affirms that the Judicial Review appeal submitted by the convict’s attorney without the presence of the convicted person should be denied and that his case file should not proceed to the Supreme Court.
In the case of Sudjiono Timan, the reason stated by the Chairman of the Supreme Court, M. Hatta Ali, is that SEMA No. 1 Year 2012 was dated 28 June 2012, while the Judicial Review for Sudjiono Timan was submitted before 28 June 2012, therefore making the SEMA not applicable to the case. Based on the words “with the presence of the convicted”, it has a logical consequence. Because of Sudjiono Timan’s convicted status that had already been running when the Supreme Court Regulation verdict came out, then, in contrast to the opinion of the Supreme Court; Sudjiono Timan should not be able to file for a Judicial Review. (RMF)