The Critical Study on Public Participation Model in Legislation Process: A Case Study of Indonesia

Abstract

The effectiveness of participatory decision making has been examined in some research in different areas and societies; however there are ongoing discussions in this issue.  This paper aims to critically analyze the public engagement models as main component of policy making process in democratic societies and it will look at Indonesia as a case study, because in the transitional era,  after experiencing a reforming legal and political movement in 1998, Indonesia has sought to fulfill public rights to access and involvement in policy making process and create more participatory decision making. There are some established parameters to examine the ongoing practices which will assist Indonesia to achieve the ideal model.

*this article was written in the mid of 2006, an assignment for the EAP at Melbourne Uni…my first assignment indeed..:)



I. Introduction

Broad Overview

According to Smith (1983), “public participation encompasses a group of procedures designed to consult, involve, and inform the public to allow those affected by a decision to have an input into that decision” (cited in Rowe & Frewer, 2000, 6).  Furthermore, according to Huntington and Nelson political participation is “activity by private citizens designed to influence governmental decision-making”(1976, p. 4). Thus public participation is every method which aims to make people involved to policy making which will be a rule for them and impact their lives as well.

Public participation in policy making process both in local and national government level has already been as one requisite system in enhancing good governance, as a public control and a mean in educating people to the democratic culture. This practice has been spreading in some parts of the world as a result of globalization in politic and legal area. Nowadays, since people are more aware of their political rights, they strive for the wider public domain and proper mechanism to deliver their opinions, particularly regarding policy or decision making process.

Aim and Scope
This paper will critically analyze the public engagement models in legislation process and look at the practice of public involvement in legislation process in Indonesia as a case study. Indonesia will be a case study, because in the transitional era, after experiencing the political and legal system movement, there is found an unbalance relationship between government and public, in term of public rights to access policy making process. It is also one hot debatable Issue among academic people and NGO’s activists in Indonesia.





Structure of the Paper
This paper will discuss current theory and debate on this system, before discussion it prefaces some historical aspects and context. Profound analyze will look at Indonesia as a case study, the practice of its system and gap between concept and its accomplishment. This paper will be closed by some recommendations after getting conclusion.

II. Current Theory and Debate


History and Context

Participation means activities of the citizen as individual in political life, not as a professional but as a private citizen which are intended to influence decision making process, particularly in public authorities’ matters. In term of participation forms, public can engage in ‘electoral activity’, ‘lobbying’, ‘organizational activity’, or ‘contacting’. These types may be legal or illegal, for instances, the electoral activity may take form bribery, intimidation and so on. In some countries, lobbying activity is allowed but it does not in other countries and some times public involve in violence for struggling in affecting governmental decision (Huntington & Nelson1976, pp. 4-13).

The practice of public participation is supposed to be a phenomenon of development in the society. According to Huntington and Nelson, generally, the scope, intensity and bases of political participation are indicators which differ between the traditional society and the modern one. Furthermore, Daniel Lerner (1958) declared that, “traditional society, is non participant…Modern society is participant…” (cited in Huntington & Nelson, 1976, p. 43). However political participation itself appreciated differently in different societies. Regarding to the radical changes in Russian public life since 1986, there was changing public awareness and the political system expectation as well. In totalitarian system, public are treated as ‘passive observers’, they only have basic responsibility,  such as voting which aims to maintain the political stability , otherwise in democratic system, public must be alert and actively contribute toward the government performance, making sure that there are egalitarianism and fairness (Frost & Makarov, 1998).
In fact, there was a public involvement practice in Britain before twentieth century, an advanced relationship between the parliament and its public which were indicated by growing number of public ‘activism and access’. People had accessibility to get materials on parliament events and description of parliament performance in legislation function. Moreover they can give input and opinion about particular case which engage people as a witness in the interrogation. This connection was not simply in ‘electoral relationship’ but it takes more practical forms of public engagement with the parliament as law-making institution (Innes, 2005).





Current Theory and Debate 
Issue on public involvement in legal making process emphasizes on effectiveness of this system and improvement on the methods. There are different models and character of legal involvement. According to Beierle (1998), every perspective favors different models of participation. At least there are three perspectives in environmental area; managerial perspective which favors the survey methods, the pluralist perspective tends to have stake holder mediation while the popular one is likely a citizen consultative group. All those perspectives usually use traditional participatory mechanism; such as public hearing, public comment, and advisory committee, one-way flows of information for instances; survey, focus group, and public education, collaborative decision making and conflict resolutions mechanism by mediation and regulatory negotiation, and innovative form of public deliberation (citizen juries and consensus conferences). (Beierle, 1998)

However, in science and technology policy, public participation has been formed in vary ways and a number of level. the simple method is just “one-way flow information” or “top down communication”, which take form as referenda, public hearing, and public opinion survey and more active model which public engage in decision making process as representative and contributor for the rule content in “two-way information exchange” and dialogue, such as negotiated rule making in ‘working committee’, consensus conference, citizens’ jury/ panel, public advisory committee and focus groups (Rowe & Frewer, 2000). Furthermore the UK government uses “IT-based methods, combined geographical information systems (GIS) and multi-criteria evaluation techniques” to involve the public in the decision-making process (Rowe & Frewer, 2000).
Silverman (2006) found that The USA and Canada adopt different methods in how the regions’ municipalities involve public in decision making process. This distinction based on the sources of pressure which are local elected official, the general public, social service and grassroots organization, and block club, to enlarge public participation and staff, budget and neighborhood characteristics of municipalities. Local policy processes in Canada attain more public involvement as a result of local elected official and general public role, while in America seems that social services and block club are greater participation supporters. From four types of public participation which are open government technique, such as annual meeting and providing a web site for communicating with public, public participation technique by providing strategic planning training and advisory board, neighborhood empowerment technique and voluntarism and public engagement technique, statistically Canada use them more than the USA, moreover the two types (open government and voluntarism) are used more significantly in Canada than in the USA. It implies that Canadian municipalities have more frequent contact with their people than the USA. (Silverman, 2006, p.148)



Key Principles

Some established research on efficacy of public participation methods have examined the method in term of the outcome and the technique of how the model runs. Moreover, Rowe and Frewer (2000) offer two major criteria in its evaluation; ‘acceptance criteria’ and ‘process criteria’. For acceptance criteria, there are some measurements; representativeness, independence, early involvement, influence, and transparency. While process criteria consists of accessibility criterion, task and definition, structured decision making criterion and cost-effectiveness criterion.

Rowe & Frewer (2000) argue that in term of fulfilling the whole ‘acceptance criteria’, public participation method should involve the participants from definite representatives of the proposed public,  should be conducted in free and independent way for comply the independence criteria, should be no pressure from any sponsors or parties whose political or economic intentions,  should be engaging public in the process soon as possible, so that the assessment is still significant for the intended problem and there is also authenticity of the resulted out come on guiding principle. Lastly, the process should be transparent, public have free access to get information on ongoing process and the final decision. On the other hand, for ‘process criteria’, the procedure should provide accessible resources for the participants to accomplish their report excellently. Moreover, they are also provided of understandable description on their duty and its characteristics. Thus, the participant should be familiar with appropriate mechanism in decision making process, by using configuration or demonstration on particular theory, technique or method. The procedure also should fulfill the cost-effectiveness, because cost is key concern, it usually calculated from money and time valuation compared to the result or effect on out put.

In environmental regulatory system, there is common knowledge that only few people have basic and profound knowledge on environmental issues. It means there are limited participants that can be chosen to be representative of public. In order to overcome this constraint, the regulator should have clear purpose as evaluation framework in public participation process by choosing participant appropriately and run the program effectively. According to Beierle (1998), there are six ‘social goals’ which can be parameters in evaluation of efficacy the process. In term of well-functioning environmental regulatory system, the first goal is educating and informing the public on particular issue and the procedure itself. Secondly, the goal is focusing more on educating public agencies by integrating public values, assumptions, and preferences while creating regulations. Third goal is enhancing the quality of decision especially in substantive matters. Another goal is developing people trust to the institutions, it must be difficult to measure trust but it is important thing for long term improvement of the regulation. Subsequently, there is goal to minimize divergence among stakeholders by examining whether the communication and cooperation improve or worsen during and after the process. Last goal is the cost-effectiveness in term of money, time, risk and opportunity cost (Beierle, 1998)


IV. Indonesia as a Case Study


Context of the case study 


Since the falling of “new order regime’ and the amendment of the 1945 Constitution of Indonesia, Indonesia experienced transitional period in politic and legal system which result in some new regulations. The most important thing is that legislative power moved from the executive body to the legislative body. The parliament as people representative has more power to propose and make law; consequently people have more power to engage in legislation process. Parliament has responsibility to bring and sound people aspiration, particularly in law making process. In additions, Article 28 F of the 1945 Constitution of Indonesia state that “Everybody has the right to communicate and the right to information to develop his/her personal and social environment, and has the right to seek, receive, possess, keep, develop, and give the information by any means”, and government has responsibility to provide them. In additions, the constitution also state that “sovereignty is in the hands of the people” (The 1945 Constitution of The Republic of Indonesia, Article 1), in order that, one way to implemented the people political supremacy is by extensively open the public domain in legal system.

In term of legislation making process, before amendment of the 1945 Constitution of Indonesia, some methods of public participation had been conducted by legislators such as public hearing, survey or field research to get basic data from society on particular topic. But there was limited access for public to involve; they had no right to give their opinion actively and only few of people and specific one who participated in this process. Usually, the regulatory agency involves the experts and academic people in this stage. Further more, the government regulation which states that government can involve public in legislation making process especially in preparation stage is not significant one. there is no obligation to do so. However this government regulation has lower level in legislation hierarchy so that the legislators tend to avoid this rule and there is no sanction for unfulfilling that regulation. Another important thing about this issue is that most of people do not have knowledge that they have possibility to involve in this process and deliver their input for particular laws; because government does not disseminate this knowledge for common people.

Current Practice
Indonesian law recognizes the public right to information at certain levels and in various laws. There are around 17 Laws that have had a legal impact on public access to information possessed by public institutions. Unfortunately, these laws do not give strong recognition to wide public access to information. In general, these laws do not explicitly state standards for exemptions to disclosure requirements. Furthermore, they do not provide mechanism for getting information, appeal mechanism itself, which bodies in charge of appeal assessment, sanctions of blocking the right to information and other supporting item, for instance specific law in this issue such as a freedom of information act. (Khatarina, 2001)

In 2004, the Parliament of Indonesia enacted the Law Making Process Act (Law No.10/2004), stated that people have right to give input orally or written regarding to preparation or deliberation of law and local regulation draft (Article 53). One step ahead, people rights to give input on the legislation process (local and national) particularly in preparation and deliberation stage is declared in specific law. Unfortunately, there is no clear explanation in this article about the procedure to appeal input and opinion.

In fact, there are several procedures in this practice. People can engage in legislation process from the preparation stage till the evaluation stage. In preparation stage, legislative drafters as supporting system conduct survey and field research to make an academic report as guidance in law drafting process. Parliament consider law proposal from the public as individual or group that completed with its academic report and draft. After discussion in its legislation council, they may reject or accept its proposal with or without any amendment to be one initiative proposal of the parliament to discuss in sitting period. Parliament also conducts public hearing, seminar, and dissemination of law draft to get input from public (Setyowati,et al, 2003). Unfortunately, public accessibility to involve in law making process finish till this stage. They have no access to involve in deliberation stage, usually this stage are closed for public. Only few law deliberations are accessible for public, such as deliberation of citizenship law in 2006 (Suyudi, 2006). In the evaluation stage, people have right to appeal and review the enforcement and effectiveness of law and local regulations, the review and appeal mechanism has regulated in the Supreme Court regulation No.2/2002 and the Constitutional Court Act No. 24/2004. ( Setyowati,et al, 2003)

Gaps in current theory to actual practice

Based on ‘acceptance criteria’ and ‘process criteria’, the practice of public engagement in Indonesia still has some weaknesses. In term of proposing law draft, some NGOs that usually sponsor the proposal funded by particular organization. It means there are definite motives behind this sponsor and it will reduce independence criterion. In deliberation process, public have limited access on ongoing process because this session usually is not available for public, especially in final decision session. Even if sometimes it is opened for public, public have no right to involve directly. Limited access on the information of the procedural matter is another basic problem for ideal public engagement model. In spite of technical constraints, human resources and financial problem are main causes of this drawback. In fact, public is not really familiar on this issue and government do not disseminate this information either. The ongoing models in Indonesia still find an appropriate one, it is realized that based on cost-effectiveness parameter those practices are time and money consuming and less effective compared to the out come.

Further more, According to ‘the six social goal’ from Beierle (1998), the efficacy of public participation practice in Indonesia should be improved. For instance; educating and informing public goal is not accomplished yet, there are many homework for Indonesian government to complete this goal. In this transitional period, they should work harder. This also notifies the government agencies which involve in the process to improve capability and skill to support participatory legislation process. The institutional capacity building of supporting bodies also one important requirement to enhance goal achievement. If the intermediary agencies, such as the Secretariat General of Parliament and the Law and Justice Department can perform their best services both for legislator (parliament and president) and public. It will result in public trust and harmonic relationship among each party. 

IV. Conclusion


In global context, development on the effective model and mechanism of public participation is still debatable. However this system still tries to find the ideal one regarding to the effective outcome. Every society and area have typical model but some general criteria and goals which are created to examine the efficacy of those models are applicable for general case. The final aim of the evaluation is to enhance the more effective model and the more effective outcome. In term of Indonesia, the gap of ideal theory and its accomplishment can be reduced by improving some weaknesses and examine the on going model with some established parameters. It will be very helpful to learn and doing comparative study in some countries which have more advanced and effective model in public engagement and participative decision making experience.





























References


Beierle, C. T. 1998, ‘Public Participation in Environmental Decisions: An Evaluation Framework Using Social Goals’, (Discussion Paper 99-06), Resources For The Future, Washington, Viewed June 27 2006,
Frost, S. & Makarov, D. 1998, ‘Changing Post-Totalitarian values in Russia through Public Deliberation Methodology’, Political Science & Politics, Vol.31,No.4. (Dec., 1998), pp.775-781. Viewed June 27 2006,
Huntington, S P. &  Nelson, J. M. 1976, ‘No Easy Choice; Political Participation in Developing Countries’, Harvard University Press, Cambridge.
Innes, J. 2005, ‘Legislation and Public Participation 1760-1830’ in David Lemmings (ed.), The British and their Laws in Eighteenth Century, The Boydell Press, Woodbridge, pp.102-132.
Khatarina, J. 2001,  ‘Indonesian NGO Movement for Public Access to Information & the Struggle for Enactment of a Freedom of Information Act’, Paper presented in ‘Conference on Freedom of Information and Civil Society in Asia’, Japan.
Ladd, B S. & Marshall, V. 2004, ’Participation in Decision Making: a Matter of Context?’, The Leadership and Organizational Journal, Vol.25, No.8, 2004, pp.646-662 Viewed July 7, 2006, is Opened for Public’ ‘Parlemen.net’ March 6, 2006, viewed July 10 2006
The 1945 Constitution of The  Republic of  Indonesia
The Law No.10/2003 on The Legislation Making Process Act.