Indonesian lawmakers are working overtime — defying popular opposition and their own rules — to pass a hugely controversial deregulation bill that threatens to abolish existing environmental and social protections.
Deliberations on the so-called omnibus bill are about 75% percent complete and the legislation will be passed before parliament’s next recess period starts Oct. 9, according to Hendrawan Supratikno, a member of parliament’s legislative body.
Most bills take years to clear Indonesia’s parliament, whereas this one was only submitted by the government this past February. Supratikno credited the unprecedented pace of deliberations on the fact that lawmakers had been working flat out on the bill, including during their recent recess period from July 16 to Aug. 17.
Deputy parliamentary speaker Sufmi Dasco Ahmad had promised at the start of that recess that the bill wouldn’t be discussed during this period. Speaking to protesters outside parliament, Sufmi said parliamentary regulation prohibited any lawmaking during recess.
But parliament’s legislative body pressed ahead with its deliberations, with lawmakers saying they couldn’t waste any time because of the long list of urgent items that needed to be discussed in the bill.
“If [the bill is] not discussed during the recess period, then five years won’t [be enough to] complete it,” Supratman Andi Agtas, the head of the bill’s working committee, said earlier this month.
Businesses pushing for the swift passage of the bill say it’s needed urgently to help them ride out the economic downturn caused by measures aimed at tackling the COVID-19 pandemic, with an estimated 5.5 million people expected to lose their jobs this year, out of a labor force of about 135 million.
“The COVID-19 pandemic has made the bill even more relevant and essential to support economic recovery,” Shinta Kamdani, deputy chairwoman of the Indonesian Chambers of Commerce and Industry (Kadin), said as reported by The Jakarta Post. “We need structural reform and a greater amount of investment to offset the job losses caused by the pandemic.”
But critics of the legislation — which runs more than 1,000 pages and proposes changes to more than 1,200 provisions in 79 existing laws — say the bill is far too complex to rush through, and needs much more time and transparency.
The national human rights commission, Komnas HAM, a government-funded body, has called on lawmakers to halt their deliberations because the process is rife with irregularities and constitutes a violation of the country’s laws on the legislative process.
“After we studied [the process] thoroughly, we recommend the President of Indonesia and the House of Representatives to not continue deliberating the omnibus law in an effort to respect, protect and fulfill the human rights of all Indonesians,” said Komnas HAM chairman Ahmad Taufan Damanik.
Komnas HAM deputy chairwoman Sandrayati Moniaga called the bill problematic since its inception, given that it’s been positioned as a legal umbrella that will trump existing laws — a legislative construct that’s not recognized under the country’s constitution.
“Indonesia doesn’t recognize umbrella laws,” she said. “In the 2001 law on legislative processes, directly below the constitution come the laws,” with no “umbrella laws” in between.
Lack of participation
Sandrayati said the omnibus bill is also unconstitutional because lawmakers and the government haven’t allowed proper involvement by the public in the legislative process.
When the government was drafting the bill, prior to submitting it to parliament, it largely limited its discussions to industry representatives. The task force it established to draft the bill was dominated by businesspeople and headed by the chair of the chambers of commerce.
“We can see from the legislative process that it’s not participative,” Sandrayati said.
Lawmakers’ decision to continue their discussions during their month-long recess also moved the process out of public oversight, said Muhammad Iqbal Damanik, a researcher at the environmental NGO Auriga Nusantara. He noted that WikiDPR, an independent parliamentary watchdog, didn’t have any records of the deliberations carried out during the recess.
This lack of public oversight was apparent when lawmakers discussed the environmental aspect of the bill on Aug. 13, according to the Indonesian Center for Environmental Law (ICEL), an NGO.
ICEL executive director Raynaldo Sembiring said the discussion had previously been scheduled for Aug. 12, but was postponed to sterilize the meeting room over COVID-19 concerns. Then, without public notification, the discussion was rescheduled for the following day.
“We were surprised because we were watching the parliament’s streaming channel and it turned out there was a meeting” on Aug. 13, Raynaldo told Mongabay. “And it was held at noon, which is unusual because the legislative body usually meets in the morning.”
He said the public should be properly notified ahead of time about discussions of a bill with such big implications for them.
No more environmental permits
During that unannounced meeting, lawmakers decided to scrap mandatory environmental permits, replacing them with an approval process based on self-declarations of compliance, and to limit public participation in environmental impact assessments.
Raynaldo said those decisions would result in looser environmental safeguards.
For one, communities affected by a project will no longer be able to challenge its environmental permit in court. And there’s no mechanism in Indonesia that allows the public to challenge environmental approval, even if the project approved can be found to lead to ecological damage and harm to communities.
The process of carrying out environmental impact assessments, known locally as Amdal, will also be watered down by stripping away layers of protections.
At present, project developers must have their assessments reviewed and approved by commissions at three levels of government: district/municipal, provincial, and national. Sitting on these commissions are government officials, environmental experts, representatives from affected communities, environmental activists, and others.
Raynaldo said these commissions give the public an important opportunity to participate in the Amdal process. But under the omnibus bill, the central government will outsource the work of the commissions to third-party assessors. It will also limit participation in drafting Amdal documents to only those communities deemed directly affected by a given project.
Critics say this raises the separate question of how to determine which communities are directly affected.
The decision to scrap the permit and Amdal requirements goes against the recommendations given by experts called to testify before parliament during deliberations of the bill in June.
“We fought tooth and nail to get environmental permits included in the 2009 environmental protection law,” Asep Warlan Yusuf, a law professor at Parahyangan University, told lawmakers during the June 10 meeting.
He said environmental permits were an integral component of environmental safeguards as they served multiple functions, including coordination, monitoring and prevention. Swapping them out for the approval system — based entirely on a project developer’s self-declared claims of being capable of meeting environmental standards — will weaken or erase these functions, Asep said.
“So I really beg to not change environmental permits into environmental approval,” he said.
San Afri Awang, a forestry lecturer at Gadjah Mada University and senior adviser to the environment minister, echoed Asep’s plea at the hearing.
“Please don’t remove environmental permits because they’re actually a tool for the government to coordinate, monitor and rehabilitate,” he told lawmakers. “So indeed there have to be environmental permits in areas with high risks. With these permits, the government can act [to protect the environment]. If it’s only approval, then it can’t [be done].”
Muhamad Ramdan Andri Gunawan Wibisana, a law professor at the University of Indonesia who was also invited to testify, said environmental permits were designed to unify many different other permits, such as for waste disposal and waste management. Getting rid of them would thus run counter to the government’s own stated purpose of simplifying the permitting process to make it easier for companies to do business — the central conceit for the omnibus bill.
“The omnibus bill actually adds new permit requirements because every waste disposal activity will have to have separate approvals, one for disposing of waste and one for managing it,” Andri said.
‘Away from best practices’
With many problematic articles in the bill, Asep called on lawmakers to not rush the bill and allow time for the experts’ concerns to be addressed.
“There’s a need to redraft [the bill] in relation to permits, Amdal and sanctions. If not, then it’s going to be dangerous,” he said. “Hopefully this doesn’t become a product that’s rushed. Give more time so that we can give input and study it. Don’t limit and narrow the time.”
Awang also called for a more careful deliberation of the bill, saying many of the provisions in the draft echoed the talking points of the business community.
“I give note to be careful because this omnibus law is written more for business interests,” he said. “I see that many businesses are freeloading on the discussions of the bill, and that’s why many public interests have disappeared from it.”
ICEL’s Raynaldo questioned why the lawmakers had ignored the recommendations of the experts they had invited to testify.
“The experts asked to not scrap environmental permits, but they’re still being removed anyway,” he said. “Why reject their recommendations? It’s not clear.”
The World Bank has also expressed concerns over the environmental and labor aspects of the omnibus bill.
“It’s going to move Indonesia’s environmental legislation further away from the implementation of best practices,” said Satu Kahkonen, the World Bank country director for Indonesia and Timor-Leste.
She said loosening environmental safeguards “is basically not helping Indonesia” as the current problems and delays in securing environmental permits stem from “cumbersome processing and arbitrary and corrupt implementation, rather than the protection enshrined in the environmental law.”
But critics have pointed out that the omnibus bill is inspired in part by the World Bank itself, which has been criticized for promoting wholesale deregulation measures through its annual Doing Business rankings.
In the recently released 2020 edition, countries get high marks if they demonstrate a commitment to slashing regulations rather than policies that support sustainable development, poverty elimination, and inequality reduction.
Indonesia is ranked 73rd in this year’s list, the same as last year; President Joko Widodo has said he wants the country to go up to 40th.
“We need structural reform, deregulation, debureaucratization, so we can simplify doing business. I want all ministers to evaluate each problem in detail and to detect weaknesses and points that have hindered businesses,” Widodo said last year in response to the 2019 rankings.
Raynaldo said that by ignoring the voices of critics, the omnibus bill would create more problems instead of solving them.
“My biggest worry is that we’re likely to suffer from double losses. First, the process of streamlining permits and bureaucracy won’t happen as fast as hoped with the omnibus bill,” he said. “It’s a new concept and there’s never been a new concept that has been implemented well from the start in Indonesia. Second, environmental norms are being weakened, they’re not as strong as the laws they originate from.”