The preliminary judicial review hearing of Law No. 11 of 2020 on Job Creation, Wednesday (16/12/2020) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary hearing of the formal and material judicial review of Law No. 11 of 2020 on Job Creation on Wednesday, December 16, 2020. The case No. 103/PUU-XVIII/2020 was filed by Elly Rosita Silaban and Dedi Hardianto of the Confederation of All Indonesian Labor Unions (KSBSI). The virtual hearing was attended by the Petitioners’ attorneys, Harris Manalu and peers.
Manalu said the Petitioners filed for the formal judicial review of Chapter IV of the Job Creation Law and the material judicial review of Chapter IV Part II of the Job Creation Law. Article 42 paragraph (3) letter c reads, “Foreign workers needed by employers in the type of production activities that have halted due to emergencies, vocation, technology-based start-ups, business visits, and research for a certain period of time.” Article 57 paragraph (1) reads, “A work agreement for a specified period of time shall be made in writing and use Indonesian and Latin letters.” Article 57 paragraph (2) reads, “In the event that the work agreement for a specified period is made in Indonesian and in a foreign language, if there is any difference in interpretation between the two, the work agreement for a specified period made in Indonesian shall apply.” Article 59 paragraph (1) reads, “A work agreement for a specified period of time shall only be made for a certain job which according to the type and nature or activity of the work will be completed within a certain time, as follows: a. work that is completed at once or temporary work; b. work that is estimated to be completed in a short period; c. seasonal work; d. work related to new products, new activities, or additional products that are still at trial or investigation stage; or e. work whose type and nature or activity are not permanent.”
“The petition is for formal and material judicial review of the Job Creation Law against the 1945 Constitution. The material judicial review concerns 56 articles in Chapter IV of the Job Creation Law, consisting of 52 articles in the second part on manpower, i.e. Article 81 of the Job Creation Law, and 4 articles in the fifth part on the protection of Indonesian migrant workers, i.e. Article 84 of the Job Creation Law,” Manalu said.
The attorneys took turns reading out the background of the formal judicial review. The Petitioners alleged that the Job Creation Law issue had started when a joint task force between the Government and the Chamber of Commerce and Industry (Kadin) for the public consultation of the omnibus bill by the Coordinating Minister for Economic Affairs after President Joko Widodo had delivered a speech on his second-term inauguration. Stakeholders including workers and leaders of national workers’ unions objected to their lack of involvement. Meanwhile, information had circulated among government officials that omnibus law would repeal much of Law No. 13 of 2003 on Manpower, which regulates requirements for work, as well as workers’ and employers’ rights and obligations.
The Government invited leaders of national workers’ unions to discuss the omnibus bill on job creation, but at the meeting, the Government didn’t discuss the articles that would be repealed. In addition, said the Petitioners’ attorneys, the Government and the House (DPR) seemed to have hastily prepared, discussed, and ratified the Job Creation Law, leading to it having issues both formally and materially.
“The a quo law was formed hastily, leading to controversies such as Article 6 to Article 5 paragraph (1) letter a, which cannot be found in the Job Creation Law. The Government was still deleting and/or changing the norms or articles of the bill that the House and the Government have approved,” said attorney Paruli Sianturi. In addition, the number of pages of the law kept changing. The discussion and ratification of the law by the House and the Government was supposed to be on October 8, 2020 but was done earlier on October 5.
In the material judicial review, the Petitioners said the second part of Chapter IV of the Job Creation Law violates Article 27 paragraph (2), Article 28, Article 28D paragraphs (1) and (2), Article 28G paragraph (1), Article 28H paragraph (4), Article 28I paragraph (2), and Article 33 paragraph (1) of the Constitution 1945 because it reduces the rights of workers and workers’ unions, which are regulated in Law No. 13 of 2003, and is against the philosophy of Pancasila. In addition, it is against lawmaking principles, human rights, and international legal instruments such as the ILO Convention and the Universal Declaration of Human Rights.
In addition, Sianturi explained, sociologically its content doesn’t match the needs of workers and leads to legal vacuum in industrial relations. According to the fifth part letter c, the sociological basis of the Job Creation Law is improving the protection and welfare of workers. However, the substance of the articles and paragraphs in the law, especially Chapter IV on Manpower, conversely, reduce the guarantee and protection of workers’ welfare. “Therefore, the sociological basis and the substance of the norms or provisions in the Job Creation Law are contradictory,” he added.
The content of the Job Creation Law doesn’t solve manpower and industrial relation issues, but instead adding more issues by creating a legal vacuum. Therefore, in their petitum the Petitioners requested that the Court declare the formation of the Job Creation Law, especially Chapter IV on Manpower, not meeting legislation, unconstitutional, and not legally binding.
Justices’ Advice
Constitutional Justice Wahiduddin Adams highlighted the Petitioners’ constitutional impairment. “You should explain [it] in details. … Then, which ones are included in the formal judicial review? Do review the materials, avoid inconsistency between the posita and petitum,” he said.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh observed the Petitioners’ identities. “Please review, did Mrs. Elly Rosita Silaban and Mr. Dedi Hardianto file the petition? As [individual] petitioners or a legal entity? If [the Petitioners] represent KSBSI, both Mrs. Elly Rosita Silaban and Mr. Dedi Hardianto will not be the petitioners. Please clarify this,” he said.
Justice Suhartoyo commented on their legal standing. “The points on legal standing read out were more than ten, while [in the petition] there are only nine,” he said.
Writer: Nano Tresna Arfana
Editor: Nur R.
PR: Raisa Ayuditha
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 12/18/2020 22:51 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, December 17, 2020 | 12:53 WIB 501