Public Participation in the Law Making Process in Change Era: A

Comparative Study between Indonesia (East Java) and the United

States (California)

Mohammad Syaiful Aris and Radian Salman

Faculty of Law, Universitas Airlangga, Indonesia

Keywords: Change Era, Law Making, Public, Participation.

Abstract: This article compares public participation in the lawmaking process in the U.S. and Indonesia, including

mechanisms which can be used for public participation, legislative process, and modes of increasing public

participation. Public participation in law making has some drawbacks such as unrealistic expectations,

slowdown in the legislation process and the need budget. It brought more benefits to governments and

societies. However, the legitimacy of the process, justice issues (equal opportunity to citizens and basic human

rights), also create better regulations and finally it creates stronger quality of democracy so no doubt that

public participation is prominent part of the legislation process in California and East Java. There are several

different mechanism in legislative process in two countries in four areas, namely the legal basis, initiative

mechanism, mandatory/ suggestion process and lobbyist organization. The future process should give more

opportunity to public to participate by provided easier way to access information and also give more

opportunity for marginalized people to participate in law making process. The participation is not only depend

on lobbyists but also how public who might get direct impacts could participate in the process.

1 INTRODUCTION

Some people argue that public participation in the

process of law-making in local governments is

important because it will enhance the quality of

democracy. Moreover, they also believe that it will

give some benefits for the governments and societies.

However, others claim that public contribution is a

difficult process and it also has several drawbacks to

the governments and communities.

Public participation is “the involvement of people

in a problem-solving or decision-making process that

may interest or affect them” (M.Bryson & R.Carroll,

2007). Public participation is a democratic process of

engaging people in thinking, deciding, planning, and

playing an active part in the development and

operation of services that affect their lives. ” Public

participation is important in lawmaking processes for

local governments because they are the closest

governmental institutions to the local citizens and

they have potential ability to improve the quality of

public participation (Nyalunga, 2006).

The application of participation in the legislative

process can strengthen the local community’s

representative function and will positively impact the

local rulemaking process because the process

receives support and legitimacy from the people.

Strengthening participation has implications for the

improvement of public confidence in the lawmaking

process that occurs in the political institutions.

Participation will build a good relationship with the

legislators and the citizens by strengthening ties

between representatives and their constituents (Aris,

2013).

2 MATERIAL AND METHODS

This paper using comparative method to analyze the

legislative process and the opportunity for the public

to participate. The resources are US Constitution,

Indonesian Constitution, California Constitution and

East Java Bill. The comparative focus on the

similarity and the differences between both states and

how find the best ways to improve the quality of

public participation.

Aris, M. and Salman, R.

Public Participation in the Law Making Process in Change Era: A Comparative Study between Indonesia (East Java) and the United States (California).

DOI: 10.5220/0010052501510155

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 151-155

ISBN: 978-989-758-482-4

151

3 ADVANTAGES AND

DRAWBACKS OF PUBLIC

PARTICIPATION

Fung (2006) explained that there are two major points

to support the public participation in legislation

process, namely legitimacy and justice. Public

policies such as regulations are legitimate when many

citizens support them. In fact, some people complain

that local regulations do not protect the rights of

people and tend to harm the communities’ rights. The

second reason is about justice. Fung stated that

“injustice often results from political in-equality”

(Fung, 2006). It means that all citizens need an equal

opportunity to participate in the process of law-

making. In addition, by giving public the opportunity

to involve in this process, it may lead to protect their

rights. Public participation is also considered as a

basic human right (Verschuuren, 2004). If

governments do not fulfill the participation right, it

means that they harm the citizens’ rights.

Environment Transport Regions (n. d.) claims,

“Public participation is vital in law-making

processes” (Environment Transport Regions, 2000).

There are two benefits, which are creating better

regulations and stronger quality of democracy. First

of all, involving communities can lead governments

to make enhanced policies because the process uses a

wide range of experiences from the societies.

Societies will provide more views and considerations

to analyze the draft of regulations before the

governments fix the regulations. This is important for

the local governments because it can minimize

several problems in the governments’ areas such as

“conflict of interest, the weak network capacity and

limited knowledge of the problems” (Praptanungga).

Public participation might obtain useful inputs to the

legislators to make commendable regulations because

communities have an excellent understanding about

their problems and their interests. The second point is

related to stronger quality of democracy. One

important basic principle in democratic countries is

relationship among the governments and the citizens.

If the governments have a great relationship with their

societies, the governments have good quality in their

democracy. Involving public in the process of law-

making might show that the input from citizens is

valued and essential. Thus, it can enhance the trust of

the citizens to their governments.

Even though the public participation provides

useful benefits for the governments and communities,

others assert that it also has several drawbacks.

Emmet as cited in Nampila claimed “community

participation does not guarantee success and there is

no clear methodology of community participation”

(Nampila, 2005). Furthermore, Lowndes, Pratchett

and Stoker explained three common disadvantages of

public participation, namely lead unrealistic

expectations, slow down legislation processes and

need more budgets. Public participation may give

people the impression that everything will be changed

very quickly” (Lowndes, Pratchett, & Stoker, 2001).

The impression can be a dangerous perspective for

the societies because they have high expectations to

the governments and sometimes the government do

not have sufficient resources such as budgets and

legal authority to solve the problems. Another

disadvantage is slow down process. Public

participation could inhibit the legislation process due

to the difficulties to reach consensus between the

citizens and the governments. Increasing public

contribution also needs additional cost during this

process. Therefore, the governments need to allocate

more budgets to implement it.

4 LEGISLATIVE PROCESS IN

THE U.S. (CALIFORNIA)

The California legislature is comprised of two houses:

the Senate and the Assembly. There are 40 Senators

and 80 Assembly Members. Bills can been introduced

by Senators or Assembly members. The public can

participate in each process through the process. While

people know that the State Legislature makes laws,

many societies are unfamiliar with the actual

lawmaking process and how they can influence the

output of the legislation process. If citizens read

something in the newspaper about a bill introduced in

the California Legislature, they can get more

information from each legislator since each Senator

and Assembly member maintains an office in his or

her district. This office exists to help public,

especially constituents. Moreover, people are just “a

telephone call away from everything you need to

know about a bill, about when it will be heard in

committee, about the amendments that have changed

the bill, or about how to arrange an interview with

your legislator to express your opinions in person

(Assembly, 2018).”

The first step in California legislation is idea or

suggestion for needed legislation. These ideas can

come from agencies, citizens, governments, and

lobbyists. “The process begins when either an

individual or group persuades a member of the

legislature to author a bill. The member then sends the

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idea and the language for the bill to the Legislative

Counsel's Office where it is drafted into the actual

bill. The drafted bill is returned to the legislator for

his or her review. Persons or groups that originated

the idea for the bill may also review it to ensure that

the provisions they desire are in the bill in the correct

form. If the author is a Senator, the bill is introduced

at the Senate Desk; if an Assembly member, at the

Assembly Desk, where it is assigned a number and

read for the first time (Assembly, 2018).”

After the bill is introduced a bill, the next step that

persons or groups could involve in Policy Committee.

People can find out where the bill is assigned by

calling the author. The bill is not heard in policy

committee until 30 days after it has been introduced

and printed since it give time for the public to

investigate a bill or contact to the legislator to

communicate the position of the bill. Furthermore,

“Each bill must appear in the Daily File for four days

prior to being heard in a committee”. Checking the

File is prominent because people can keep track of

bills that are being scheduled for committee so they

can become involved in the hearing process. The

public can choose their position on the bill, they can

support and oppose the idea and the content of the

bill. In addition, some groups sometimes work

together because it is a good strategy to push or

decline the bill,

In the life cycle of legislation, there is one

important process which is “the committee hearing”.

In this process, the member of legislatures will hear

some testimony from bill authors, citizens, experts

and lobbies. Involving many varieties group in the

hearing process could give more benefits to the

legislator members because they could hear idea from

both side, from support and opposite groups.

5 LEGISLATIVE PROCESS IN

INDONESIA (EAST JAVA)

A bill can be proposed from executive and the

Legislator, both of them have the same right to initiate

new bill. The detail process of law making processes

are based on Law of Republic of Indonesia No. 12 of

2011 on the formulation procedure for legislation and

Law of Republic of Indonesia No. 23 of 2014 on

Regional Government. East Java has special Law for

legislation process that is Law No. 1 of 2015 on the

procedure for local legislation. The regulations state

that public participation is important process in law

making proses. The legislators should give

information to the public about the draft of bill so

public could understand the process and hopefully the

societies will able to participate the process. East Java

Law No. 1 of 2015 states that societies have the right

to participate in the law making process by verbally

or writing. There are several mechanisms maybe used

by legislator such as public hearing, working visit,

socialization, and / or seminars, workshops, and / or

discussion.

East Java legislator uses a formal and informal

mechanism to absorb public participation in law

making process. The formal mechanisms are

kunjungan kerja (parliament visiting), socialization

and public hearing and reses aspiration. Parliament

visits are designed by the legislative commissions to

visit some areas in East Java province, other

provinces or overseas. The goal of the visiting to get

input from the societies to the draft of the bill and also

to get comparison data from other places about the

same issues. Socialization or public hearings held by

committees in legislators. The purpose of public

dissemination or hearing is a discussion draft of the

bill in the East Java parliament. The parties involved

in the hearing are agencies, on-Government

Organization, communities, individual and experts.

The recess period is time when the members of

parliament visit their constituencies to obtain

people's aspirations such as feedback, complaints,

opinions, suggestions, and other issues related to

community problems.

6 COMPARATIVE ANALYSIS

Both California and East Java legislatures believe that

public participation is important part of legislative

process. Enactment of participation in the legislative

process can strengthen the local community

representation function and will have a positive

impact in the local rulemaking process because the

process is getting the support or legitimacy from the

people. Moreover, public involvement builds good

relationships between the legislators and the citizens.

Both of the institutions have mechanisms or

procedures how to involve public participation in the

process.

Both of the institutions have the same challenging

problems in the participation process, especially

related to providing an opportunity to be heard. Jack

Davies, a state senator from Minnesota stated that

“Not everyone who wants to be heard by a legislative

is given that opportunity. Not even members have the

privilege to say as much as they might want because

time pressure is too severe” (Davies, 1986). The

problem also occurs in East Java Province legislators,

Public Participation in the Law Making Process in Change Era: A Comparative Study between Indonesia (East Java) and the United States

(California)

153

they have to deal with many bills in every section so

they don’t have much time to heard testimony for

every bill. As a result they select the bills which need

a public hearing or just base on the draft or proposal

the bill.

There are several differences between California

Legislature process and East Java Province such as

legal basis for the legislative process, the procedure

requirement the member parliament initiative, lobbies

mechanism and the accessible information.

6.1 The Legal Basis for the Legislative

Process

The authority of the legislative power both of them

are derived from Federal and National constitutions.

However, the legal basis of the detail proses of the

legislations are different, the detail of California

legislative proses is from parliament guides such as

California State Assembly Office the Chief Clerk,

Legislative Procedure and Senator Legislative

Procedure. The procedure provide detail of the life

cycle of legislation in California. While the

legislation process in East Java not only based on

legislative guide but also based on East Java Law No.

1 of 2015(bill) on the formulation procedure for

legislation. The bill of legislation process needs joint

approval from the executive and legislative.

6.2 Initiative Mechanism the Bill

The initiative for a bill in California could be from

individual or group in assembly members or senate.

The members who initiate the bill become the author

of the bill. In addition, executive (governor) does not

have a right to introduce or initiate new bill in

legislation process, they only have right to agree or

disagree with bill from the parliament and also have

right to veto. However, the East Java Parliament

members only could initiate a new bill if they have

minimal number members who support and sign the

initiate bill, individual member could not have right

to initiate new bill in legislation process. Moreover,

the executive (governor) has the right to initiate a new

bill in legislation process and also they not only have

the right to sign a bill but also have the right to involve

in discussion process in the process.

6.3 Public Participation in Legislative

Process

In the California legislative process, public

participation is a requirement of the process. a bill

cannot pass the process without the public

participation. The committee has to invite public to

participate including citizens, experts and lobbies. In

East Java public participation is not an obligatory

process. Parliament could decide which bills need to

invite public or not. The decision is usually based on

the controversial and the impact of the bills.

6.4 Lobbyists

Another differences is related to lobbyists. The

Federal and States congress have formal lobbyist

(registered lobbyists) in the process (Gelak, 2008),

while in Indonesia does not have formal or registered

lobbyists in National or Local parliaments, the

lobbyists are considered as part of the political

process. Furthermore, the lobbyists in the USA

legislation process have become important actor in

the process. “They are becoming more

professionalized and becoming more full time

occupation in a number of states. In addition, there

has been increase significantly in the number of

professional lawyer-lobbyist and lobbying firms that

represent multiple clients have become more

numerous” (Keefe & Ogul, 2001).

7 CONCLUSION

Even though public participation in law making has

some drawbacks such as unrealistic expectations, a

slowdown in the legislation process and the need

budget, it brought more benefits to governments and

societies. However, the legitimacy of the process,

justice issues (equal opportunity to citizens and basic

human rights), also create better regulations and

finally it creates a stronger quality of democracy so

no doubt that public participation is prominent part of

the legislation process in California and East Java.

The future process should give more opportunity

to public to participate by provided easier way to

access information and also give more opportunity for

marginalized people to participate in law making

process not only depend on lobbyists but also how

public who might get direct impacts could participate

in the process. Thus, educating society is become the

key element on improving public participation

because they become aware with their rights and the

legislative process.

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