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Constitutional Justice Saldi Isra opening the preliminary formal judicial review hearing of Law No. 11 of 2020 on Job Creation, Tuesday (8/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another formal judicial review of Law No. 11 of 2020 on Job Creation on Tuesday, December 8, 2020 in the plenary courtroom. The petition No. 107/PUU-XVIII/2020 was filed by 15 legal entities including the Indonesian Farmers Union (SPI) and the Indonesia Human Rights Committee for Social Justice (IHCS).

At the hearing led by Constitutional Justice Saldi Isra, the Petitioners’ attorney Maria Wastu Pinandito said the Job Creation Law violates Articles 20 and 22A of the 1945 Constitution for not meeting the formal lawmaking requirements as stipulated in Articles 158, 161, 162, and 164 of the House Rule of Conduct No. 1 of 2020 and Article 72 of Law No. 12 of 2011. She said because the drafting team of the Job Creation Bill hadn’t finished their draft, the synchronizing team couldn’t review the text. The reviewed text should’ve been reported to the working committee session, in which a decision will be made, pursuant to Article 162 of the House Rule of Conduct No. 1 of 2020.

Maria said based on Article 162 of the House Rule of Conduct No. 1 of 2020, the bill resulted from the decision of the working committee session must have been read out in full, along with its elucidation. If the draft had been agreed on upon deliberation, a final decision would have been made at the Level I Discussion, pursuant to Article 163 of the House Rule of Conduct No. 1 of 2020. The text of the bill would have been read out then. “The fact is that until the House plenary session to ratify the Job Creation Bill, the House and the Government didn’t have the text that they were supposed to ratify. The people didn’t know which one of the texts was approved because of the many versions circulating,” she added.

The Petitioners believe that a bill that has been ratified by the House and the president shouldn’t be changed. However, several substance changes occurred in the bill. “[There are] the 905-page plenary session version, the 1,035-page version, the 1,187-page version. [There were changes] in Article 17 in the Spatial Planning cluster in Article 6 paragraph (7) of Law No. 26 of 2007 on Spatial Planning; Article 46 of Law No. 22 of 2001 on Oil and Natural Gas was removed; and [there were] changes in substance in Article 88A and Article 154A paragraph (1) of the Law No. 13 of 2003 on Manpower,” Maria explained.

Therefore, the Petitioners deemed the Job Creation Law in conflict with Articles 20 and 22A of the 1945 Constitution for not meeting the formal lawmaking requirements as stipulated in Article 5 letters f and g, Article 6 paragraph (1) letter j, and Article 96 of Law No. 12 of 2011. It also violates Article 27, Article 28C paragraph (2), and Article 28D paragraph (3) of the 1945 Constitution for giving different treatments to citizens.

Maria added that some contents in the Job Creation Law were ambiguous, thus if enacted wouldn’t provide legal certainty, for example Article 5 paragraph (1) and Article 6 on the improvement of investment ecosystem and business activities. Article 175 point 6 in Chapter XI on the Implementation of Government Administration to Support Job Creation is also ambiguous since Article 53 paragraph (5), which refers to paragraph (3), doesn’t provide legal certainty and isn’t clear because it doesn’t regulate actions that are legally allowed, but electronic application system.

“The legal system in Indonesia doesn’t recognize the concept, form, and characteristics of the Omnibus Law as referred to in the Job Creation Law. The concept adopted by the Job Creation Law is almost similar to the codification of the law, but shows many differences, where the codification of the law is applied to the same or similar legal material, while the Job Creation Law contains amendments to 79 different and previously existing laws.

Justices’ Advice

Constitutional Justice Wahiduddin Adams gave several recommendations including that the Petitioners elaborate on their arguments and their legal standing. As legal entities, the Petitioners should be represented by the organization committees. Meanwhile, Constitutional Justice Suhartoyo said each Petitioner must provide a reference to the organization’s article of association regarding their representative in the petition. He also asked them to simplify the background to the petition. Constitutional Justice Saldi Isra added that evidence must be included in a formal judicial review case so that the Court could verify it.

Writer: Sri Pujianti
Editor: Lulu Anjarsari
PR: Tiara Agustina

Translator: Yuniar Widiastuti (NL)

Translation uploaded on 12/11/2020 11:30 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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