Constitutional law expert Zainal Arifin Mochtar testifying for the Petitioners at a judicial review hearing of the Job Creation Law on Thursday (5/8/2021) virtually. Photo by Humas MK/Bayu.
Thursday, August 5, 2021 | 20:33 WIB
JAKARTA, Public Relations—Another judicial review hearing of Law No. 11 of 2020 on Job Creation took place at the Constitutional Court (MK) on Thursday, August 5, 2021. At this fifth hearing, two experts testified for six cases: No. 91/PUU-XVIII/2020, 103/PUU-XVIII/2020, 105/PUU-XVIII/2020, 107/PUU-XVIII/2020, 4/PUU-XIX/2021, and 6/PUU-XIX/2021. This plenary hearing was presided over by Chief Justice Anwar Usman and the other constitutional justices.
“Due to the [emergency public activity restriction (PPKM)] and following the health protocol, any assembly including this hearing is limited to two hours. Therefore, we can only hear a maximum of three experts at today’s hearing,” Justice Anwar explained. Expert Zainal Arifin Mochtar testified for case No. 91/PUU-XVIII/2020, Feri Amsari for case No. 103/PUU-XVIII/2020, and Hernadi Affandi for case No. 105/PUU-XVIII/2020.
Constitutional Morality
Constitutional law expert Zainal Arifin Mochtar explained the concept of lawmaking, as case No. 91/PUU-XVIII/2020 is a formal judicial review case.
“I believe that lawmaking is not merely a formal issue, which concerns participation, aspiration, process, [National Legislative Program (Prolegnas)], and so on. I think the constitutionality of lawmaking also concerns morality within the Constitution itself, which is respect for the people’s sovereignty,” he said.
This means, he believed, that constitutionality not only concerns the formal but also the material aspect, both of which are important in lawmaking. “We cannot just observe how a law is formed, how the formality is fulfilled, but also the basic substance whether public aspiration is realized,” he added.
He mentioned expert Sherry Arnstein’s view that lawmaking often only meets the formal aspect and disregards substance, constitutional morality, and other matters.
Zainal then talked about the lawmaking violation of the Job Creation Law. While the bill had been proposed long before and the omnibus law had also been discussed for a while, Zainal found it odd that the House of Representatives (DPR) revised Law No. 12 of 2011 on October 2019 into Law No. 15 of 2019 without the omnibus method.
“Of course it was odd. How was it possible that the procedure to amend legislation had existed but the omnibus method was not implemented? It was possible a rushed job. It could also be a camouflage effort so as to avoid protest, and so on,” he said. He also said that the lack of citizen participation and transparency also constituted lawmaking violations.
Zainal believed it would not be easy to compare the formal lawmaking method of the Job Creation Law and that of other laws, because the Job Creation Law was formed amid the COVID-19 pandemic, so the meetings were conducted online. Public participation was also online, which created a sense of gap.
Zainal said the omnibus law practice in countries such as Canada usually doesn’t combine many issues. When it did, such as in Ireland, it usually fails.
Last, Zainal said that there would be negative implications if the Job Creation Law remained because the rushed lawmaking process led to the legislature delegating it to presidential regulations etc.
Lawmaking Philosophy
Next, Feri Amsari explained lawmaking philosophy and warned against haphazard lawmaking. “Legislation that are formed haphazardly will endanger the life of the state, damage the relationship between the legislature and the people they represent. That is why, constitutionally, a formal judicial review method that can annul statutory legislation that violates the lawmaking procedure was established,” he said.
Feri talked about a story in the Bible and Judaic holy books of a sea monster that threatened the people, which was then used by expert Thomas Hobbes to describe humans and humanity in a bad government in Kingdom of Darkness. Hobbes believed that humans had keen senses, which are a life gift. He also talked about how humans may stray in fulfilling their duties by implementing a bad government.
“Good people are often defeated by bad forces. And vice versa, persistent good will overcome evil. Hobbes likened the meeting of the sunlight and the stars in the human eye. The sun is considered brighter than the stars because the human senses are influenced by the presence of sunlight rather than starlight,” he said.
Likewise in lawmaking. Feri believes political power is often on the side of darkness. It needs a judge’s light to fix it through judicial review. However, it is not impossible that the judiciary can side with darkness and let laws that were formed haphazardly or with flawed procedures finally have legal force to be applied.
“As a result, constitutional values are neglected. This condition is detrimental to the legislature and political parties because of the loss of public trust in the party and the representative system,” Feri explained.
The weak public trust, according to Feri, is due to the fact that representative institutions and political parties form legislation that are far from the substantial values the public desired.
Feri explained further the history of the omnibus law that it is said to be a legislation monster. The omnibus law concept was discussed by the British parliament in the 1800s, aimed at simplifying the process of lawmaking in the UK parliament. In its development, the public became aware that this was part of a tactic to include various interests in the omnibus law because there were too many articles, too much content.
Feri quoted a literature that defines a bill (RUU) as a variety of different things to force the government to accept certain unrelated articles or reject the main law entirely, resulting in buying and selling of interests. Therefore, in the history of England, Canada, and the US, changes were then initiated so that buying and selling interests would not exist in the omnibus law, resulting in it being a big law that only contains one issue.
Reaction and Backlash
Human rights activist Hernadi Affandi said that the reaction and backlash from the community towards the Job Creation Law indicated a problem. History shows that since the establishment of the Constitutional Court, many laws have been petitioned to the Constitutional Court.
“One of the laws that are considered to have caused injustice is Law No. 11 of 2020 on Job Creation. The reason is that the formation and existence of the law is considered a procedural defect because it does not meet a reasonable lawmaking procedure,” he said.
Hernadi emphasized several issues related to the Job Creation Law. He believes its form is considered unusual. In addition, it uses the omnibus law model, where many legal materials are contained in one law. As many as 78 materials are contained in the Job Creation Law; they were previously separate and independent, then combined into one law.
The omnibus law model, he explained, was previously unknown in the Indonesian legal system. It is not mentioned in Law No. 12 of 2011 on Lawmaking.
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Job Creation Law Allegedly Commercializes Education
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Petition No. 91/PUU-XVIII/2020 was filed by Hakimi Irawan Bangkid Pamungkas, Novita Widyana, Elin Dian Sulistiyowati, Alin Septiana, and Ali Sujito (Petitioners I-V). Petitioner I worked at a company with an employment agreement made for a specified period of time (PKWT) as a technician helper. However, due to the COVID-19 pandemic, his employment was unilaterally terminated. He alleges that Article 81 of the Job Creation Law has eliminated the employment period of PKWT contracts, which restrict citizens from entering into employment agreement made for unspecified period of time (PKWTT) or becoming permanent employees.
Meanwhile, Petitioner II is a vocational high school student majoring in administration and office administration at SMK Negeri I Ngawi. She could potentially be employed under PKWTT with the enactment of the Job Creation Law. Petitioner III is an undergraduate student of Education Administration at Brawijaya University while Petitioner IV is an undergraduate student of Office Administration at the State University of Malang. Petitioner V is a student at the Natural Sciences Education program at Modern Ngawi Teacher Training College (STKIP).
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Court Holds Another Hearing on Job Creation Law
Petitioners of Job Creation Law Convey Revisions
The petition No. 103/PUU-XVIII/2020 was filed by Elly Rosita Silaban and Dedi Hardianto of the Confederation of All Indonesian Labor Unions (KSBSI). They 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, that is Article 42 paragraph (3) letter c and Article 57 paragraphs (1) and (2).
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.”
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Textile Workers’ Union Federation Challenges Job Creation Law
FSP TSK-SPSI Conveys Revisions to Petition
The Petitioners of case No. 105/PUU-XVIII/2020 are the chairman of the Garment and Leather Textile Workers’ Union Federation - All-Indonesian Workers Union Indonesia (PP FSP TSK-SPSI) Roy Jinto and 12 individual petitioners. They challenge Article 81 point 1, Article 13 paragraph (1) letter c point 2, Article 14 paragraph (1) point 3, Article 37 paragraph (1) letter b point 4, Article 42 paragraph 12, Article 56 paragraph (3) and paragraph ( 4) point 13, Article 57 point 14, Article 58 paragraph (2) point 15, Article 59 point 16, Article 61 paragraph (1) letter c point 20, Article 66 paragraph 23, Article 79 paragraph (2) letter b point 24 , Article 88 point 25, Article 88A paragraph (7), Article 88B, Article 88C point 30, Article 92 point 37, Article 151 point 38, Article 151A point 42, Article 154A point 44, and Article 156 paragraph (4) letter c of the second part of Chapter IV of the Job Creation Law.
They assert that the Job Creation Law doesn’t have enough basis of academic texts and is not based on a comprehensive analysis of the changes in 79 laws, especially the second part of Chapter IV on Manpower in Law No. 13 of 2003 on Manpower, and doesn’t justify the urgency of the changes to the Manpower Law. They saw the academic texts of the Job Creation Law a mere formality.
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Deemed Unconstitutional, Job Creation Law Challenged by 15 Legal Entities
Fifteen Legal Entities Revise Job Creation Law Petition
The case No. 107/PUU-XVIII/2020 was by the Indonesian Farmers Union (SPI) and 14 other petitioners. They allege that the planning of the Job Creation Law didn’t meet the formal requirements of lawmaking and that it violates the principle of transparency. Its formulation didn’t involve the general public, instead only did a select few. Even the authenticity of the bill drafts that were disseminated to the public were uncertain.
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Job Creation Law Challenged by 662 Workers
Number of Petitioners of Job Creation Law Reduced
The general chairman of the Federation of Chemical, Energy, and Mine Workers Union - All-Indonesian Workers Union Indonesia R. Abdullah along with 662 other petitioners challenge Law No. 11 of 2020 on Job Creation. The petition has the highest number of petitioners in the Court’s history.
Through their attorneys, the Petitioners filed for the formal and material judicial review of the law. In the petition, they request that the law be declared in violation of lawmaking provisions according to the 1945 Constitution and, thus, not legally binding. They also request that the Court declare the a quo norms unconstitutional or conditionally unconstitutional and that several articles in Law No. 13 of 2003 on Manpower be declared valid and legally binding.
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Federations and Industrial Workers Challenged Job Creation Law Formally
FSPMI Revises Petition on Job Creation Law
Meanwhile, the Petitioners of case No. 6/PUU-XIXI/2021, Riden Hatam Aziz and three others, assert that the Job Creation Law doesn’t have legal certainty because its lawmaking process was formally defective. They believe that the law is unconstitutional because the inclusion of its bill in the Prolegnas (National Legislative Program) didn’t follow the provisions set forth in Law No. 2 of 2011, while its formulation didn’t follow the technical and format requirements as well as the lawmaking principles set forth in Law No. 12 of 2011. The inclusion of the bill No. 11 of 2020 in the Prolegnas cannot be based on the RPJMN (National Medium-Term Development Plan) as referred to in Article 18 letter f of Law No. 2 of 2011 because the RPJMN is only for a period of five years.
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Govt Delays Statement for Cases on Job Creation Law
House, Govt Stress Job Creation Law Absorbs Manpower
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/9/2021 10:16 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, August 05, 2021 | 20:33 WIB 501