Vice Chairperson of House\'s Commission IX Sri Rahayu giving a statement in the follow-up material review hearing of Law Number 18 of 2017 on the Protection of Indonesian Migrant Workers, Thursday (20/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—A follow-up judicial review hearing of Law Number 18 of 2017 on the Protection of Indonesian Migrant Workers (PPMI Law) was held by the Constitutional Court (MK) on Thursday (20/2/2020) to hear the statements of the House of Representatives (DPR) and President.
Vice Chairperson of House\'s Commission IX Sri Rahayu asserted that the Petitioner was not a subject of the PPMI Law that has the authority to place Indonesian migrant workers abroad. This is because Article 49 of the PPMI Law explicitly mentions parties who have the authority to place Indonesian migrant workers abroad. In addition, according to the House, the Petitioner is a private legal entity, so it does not have the same rights as citizens who have constitutional rights as stated in Article 27 of the 1945 Constitution.
The House also responded to the Petitioner\'s argument related to Article 33 of the 1945 Constitution. The House was of the opinion that the Petitioner was not careful in reading the article.
"The article does not […] give constitutional rights to every citizen but [it] is a legal basis for the policy in organizing national economy and social welfare. Therefore, the Petitioner\'s argument is legally groundless," said Sri to the court panel led by Chief Justice Anwar Usman.
In relation to Article 54 paragraph (3) of the PPMI Law, in which the Petitioner feels disadvantaged because not being able to do business due to certain circumstances, such as minister at any time changing the amount of deposit and paid capital, Sri stated, "The article is a delegation provision granted by lawmakers to the minister, so that in certain circumstances [the minister] can review the amount of paid capital and deposit guarantee. This is because the value or amount is fluctuating, so it always needs to be reviewed by the minister through more technical regulations," Sri explained.
The Government\'s attorney Aris Wahyudi questioning the constitutional impairment of the Petitioner which is specific, special, actual or at least potential in nature according to logical reasoning can be assured of occurring. According to the Government, there is no constitutional loss suffered by the Petitioner. The Government\'s reason is that there is no causal relationship between the loss argued by the Petitioner and the application of Article 54 paragraph (1) letter a and letter b, Article 82 letter a, Article 85 letter a of the PPMI Law.
"Basically the a quo articles regulate the requirements for Indonesian migrant worker placement companies that want to obtain a permit for Indonesian migrant worker placement companies and regulate criminal sanctions for anyone who deliberately places prospective Indonesian migrant workers in their positions and types of work not in accordance with the work agreement," Aris said.
In addition, according to the Government, the Petitioner\'s arguments are unclear, especially regarding its concrete, specific, and actual or potential constitutional damage as an association legal entity that could, according to logical reasoning, occur. It also claimed that the Petitioner\'s provisional demand that Article 54 paragraph (1) letters a and b, Article 82 letter a, and Article 85 letter a of the PPMI Law be delayed was vague and groundless. "There is no such thing as a postponement of the enactment of a norm based on Law Number 12 of 2011 concerning the Formation of Legislation," said Aris.
Aris added that the Government and the Parliament had formed the PPMI Law, which aims to protect prospective migrant workers and Indonesian migrant workers from human trafficking, slavery, and forced labor, violence, abuse, crimes against human dignity, as well as other treatments that violate human rights.
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The Petitioner of case No. 83/PUU-XVII/2019 is the Association of Migrant Worker Placement Companies (ASPATAKI). They challenge Article 54 paragraph (1) letters a and b, Article 82 letter a, and Article 85 letter a of the PPMI Law.
Article 54 paragraph (1) letters a and b of the PPMI Law reads, "In order to obtain SIP3MI as referred to in Article 51 paragraph (1), the Indonesian Migrant Worker Placement Agency must meet the following requirements: a. having a paid-up capital stated in the deed of establishment of at least Rp5,000,000,000 (five billion rupiah); b. depositing money to a government bank in the form of a deposit of at least Rp1,500,000,000 (one billion five hundred million rupiah) that can be disbursed at any time as a collateral to fulfill obligations in the Protection of Indonesian Migrant Workers."
Article 82 letter a reads, "Being sentenced to imprisonment for a maximum of 10 (ten) years and fined for a maximum of Rp15,000,000,000 (fifteen billion rupiah), every Person who deliberately places Prospective Indonesian Migrant Workers in: a. jobs and type of works that do not match the employment contract so they harm the Prospective Indonesian Migrant Workers as referred to in Article 67 letter a."
Article 85 letter a reads, "Being sentenced to imprisonment for a maximum of 5 (five) years and fined for a maximum of Rp5,000,000,000 (five billion rupiah), every person who: a. places Indonesian Migrant Workers in works that do not match the Employment Contracts that have been agreed and signed by Indonesian Migrant Workers as referred to in Article 71 letter a."
The Petitioner felt harmed by Article 54 paragraph (1) letters a and b, Article 82 letter a, and Article 85 letter a of the PPMI Law along the phrase "a government bank" and 5 billion paid capital as well as a deposit of 1.5 billion is not affordable by Indonesian migrant worker placement companies (P3MI).
The requirement of at least 5 billion paid capital in the company\'s deed of establishmentis clearly unfair while Article 32 of Law No. 40 of 2007 on Limited Liability Company only demands minimum 50 million. It is unclear whichlaw shouldbe abode by P3MI. (Nano Tresna Arfana/ASF/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 2/24/2020
Thursday, February 20, 2020 | 16:21 WIB 188