Indonesia: Collective Civil Disobedience is Needed against Omnibus Law on Job Creation
Even before COVID-19 struck Indonesia early this year, the issues of democracy and human rights were at the centre of criticism by civil society as civic spaces continue to be under siege. The pandemic has only worsened the situation. President Joko Widodo’s second-term administration, which enjoys a majority in the House of Representatives, has been arrogant by enacting various controversial laws that threaten people's sovereignty and the fulfilment of their human rights. An oligarchic approach is evident from the policy choices of the President as the executive, and his supporting members of the legislature. Their actions have resulted in the violation of the Constitution and against the will of the people. One of them is the passage of Omnibus Law on Job Creation, which has been strongly opposed by different levels of society.
The procedure and substance of the Law are very problematic. The Law was drafted and deliberated in a closed, non-participatory and discriminatory manner. Only businesses and bureaucrats were involved and had access to information on the draft law until it was passed. The drafting, deliberation and passage of the Law were forced and expedited while Indonesian people were struggling to face the pandemic. Substantially, the Law sacrifices human rights and environmental protections as it both limits public participation in the environmental decision-making process and access to information on decisions related to environmental feasibility.
Despite strong opposition from civil society, labour groups, students and other groups in the society, the Omnibus Law on Job Creation still found its way to be passed by the parliament on 5 October 2020 and then ratified by the President as Law No. 11 Year 2020 on Job Creation on 2 November 2020.
People have tried to block the enactment of the Law in various ways, both through litigation and non-litigation advocacy. However, these efforts have yet to bear fruit. The government systematically suppressed large demonstrations in various areas in Indonesia with brutal repressive actions by the security apparatus. Repression of the media and developing counter narratives against public objection through media and ‘buzzers’ have been also part of the tactics used by the government. Those who are critical on social media are being criminalised under the 2008 Information and Electronic Transactions Law. At the moment, demonstrations are ongoing but with a weakening power. National and international campaigns rejecting the Law, both offline and online, continue despite the ongoing digital threats to activists.
A strategic lawsuit was filed by the Advocacy Team for Democracy (which includes LBH Jakarta) prior to the passage of the bill. Sadly, the lawsuit was rejected by the Administrative Court for weak normative reasons. The Court argued that it had no competence to examine policies related to the formation of the bill. The poor decision of the court of first instance was predictable. There were delays in court proceedings and excessive deployment of security forces during the trial. Currently, legal efforts to appeal against the decision are being pursued.
Legally, there are two legal possibilities to fight Omnibus Law:
- Urge the President to cancel the Law by issuing an emergency regulation in the form of a Government Regulation in Lieu of a Law (Peraturan Pemerintah Pengganti Undang-Undang/PERPU);
- File a judicial review to the Constitutional Court.
Given that the Law is a testament of President Jokowi’s ambition to attract more investment, it requires broad and massive public pressure to be able to ‘urge’ the President to issue such a regulation. Therefore, second option is more realistic, but given the current context, it is also not strategic and effective. The Constitutional Court rarely declared a law unconstitutional because of procedural matters. Public doubts over the independence of the Constitutional Court have grown due to the fact that prior to the passage of the Law, the President and the parliament approved a limited amendment to the Law on the Constitutional Court. The amendment provides various privileges for the currently serving judges. The President has also openly asked for the Court’s support during the drafting of the Law.
Due to limited advocacy and legal opportunities, civil society movements are not carried out in a collective manner but separately, based on the focus of each movement. For example, as of 20 November, the Constitutional Court has accepted 10 judicial review petitions submitted by individuals, trade unions, and a coalition of unions and NGOs to revoke the Omnibus Law, either partially or in its entirety. It is believed that efforts to revoke the Law must be part of a collective civil disobedience movement that conveys public distrust in the government.