Experts Aan Eko Widiarto, Wicipto Setiadi, and Fitriani Ahlan Sjarif for the Petitioners taking oath virtually before testifying at a judicial review hearing of Law No. 11 of 2020 on Job Creation, Thursday (12/8/2021). Photo by Humas MK/Ifa.
Thursday, August 12, 2021 | 16:47 WIB
JAKARTA, Public Relations—Another judicial review hearing of Law No. 11 of 2020 on Job Creation took place virtually from the Constitutional Court (MK) on Thursday, August 12, 2021. At this sixth hearing, six cases were heard: 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.
Constitutional law expert Aan Eko Widiarto testified for case No. 107/PUU-XVIII/2020 that the Indonesian legal system, as referred to in Article 1 paragraph (3) of the 1945 Constitution, had developed quite rapidly along with judicial review. He quoted jurist Adriaan Bedner, who stated that the rule of law can then be understood as an umbrella concept for a number of legal and institutional instruments to protect citizens against the administration that abuses its power.
“Formal judicial review, which is the review of any legal product based on the lawmaking process, guarantees and ensure the protection of citizens against the abuse of state power in lawmaking,” he said.
Legal Finding
Aan further explained that the state’s lawmaking authority is constitutional and the legislature must make appropriate laws through the right procedure. The Constitutional Court has handed landmark decisions on the formal judicial review of laws. A landmark decision must contain the justices’ legal finding, which is the effort to fill the legal vacuum in the positive law. Aan revealed three of such decisions: No. 27/PUU-VII/2009, No. 92/PUU-X/2012, and No. 79/PUU-XVII/2019.
The Decision No. 27/PUU-VII/2009 laid the basis for formal judicial review. The Constitution delegates the authority to make laws. The Decision No. 92/PUU-X/2012 laid the basis for the lawmaking procedure that involves the Regional Representatives Council (DPD).
“Last, the Decision No. 79/PUU-XVII/2019, which I think is the most monumental, laid the basis for the criteria and scope of formal JR, which covers the review of the lawmaking procedure, both the discussion and the decision-making of a bill of law into a law,” Aan said.
Aan also talked about the review over the format and structure of laws, the authority of the institution that makes the decision in lawmaking, and other matters outside of the material judicial review. Aan referred to those three landmark decisions to testify on the case. The Petitioners requested several things, such as the review over the lawmaking procedure, both the discussion and the decision-making of a bill of law into a law, and the drafting of academic texts (NA) in lawmaking. They also question whether academic texts be mandatory in lawmaking. Quoting the Law on Lawmaking, Aan said they were not mandatory.
Touchstone
Legal scholar Wicipto Setiadi, an expert for the Petitioner of case No. 4/PUU-XIX/2021, explained the touchstone of the formation of the Job Creation Law, the principles of lawmaking, the stages of lawmaking, and the technique to draft laws.
Wicipto said the lawmaking procedure could not be separated from the laws on which they were based. The 1945 Constitution mentions two constitutional bases: formal constitutional and material constitutional.
“The formal constitutional basis is the basis that is usually stated in the legal basis, considering that it is the authority of the legislature based on our Constitution. If a bill is proposed by the House (DPR), the formal constitutional basis is Article 20 paragraph (1) and Article 21 of the 1945 Constitution. Then if the bill is proposed by the DPD [Regional Representatives Council], the formal constitutional basis is Article 22D paragraph (1) of the 1945 Constitution. If it is by the president, the formal constitutional basis is Article 5 paragraph (1) of the 1945 Constitution,” he said.
Meanwhile, the material constitutional basis, Wicipto said, are the articles that are directly related to the substance or material that is regulated in the law. A law must include its formal and material bases. He added that two laws are inseparable from the 1945 Constitution: Law No. 12 of 2011 on Lawmaking and Law No. 17 of 2014 on the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Regional Representatives Council (DPD), and the Regional Legislative Council (DPRD)—the MD3 Law.
Wicipto also said that under the law there is the House Regulation No. 1 of 2014 on Rules of Procedure as well as the Presidential Regulation No. 87 of 2014 on Implementing Regulation of Law No. 12 of 2011 on Lawmaking.
A Matter of Constitutionality
Next, Fitriani Ahlan Sjarif testified as an expert for the Petitioners of case No. 6/PUU-XIX/2021. She explained several constitutionality issues in the lawmaking process of the Job Creation Law, such as the failure to meet several requirements in the National Legislative Program (Prolegnas).
“There is also a failure to comply with guidelines on the technicality and systematics of lawmaking following the Law on Lawmaking. In addition, there is a failure to meet the lawmaking principles following the Law on Lawmaking,” said the law lecturer of the University of Indonesia.
Fitriani then explained the Constitutional Court’s legal considerations in the Decision No. 27/PUU- PUU-VII/2009: that the lawmaking procedure is a series of legal actions that produce a law. If any part of the lawmaking procedure is violated, all of the actions can be declared formally defective.
“All provisions in the lawmaking procedure are an inseparable unity. Each stage cannot be separated from that which comes before. Therefore, the stages have requirements that have to be met fully. In legal science, there are process, methods, and techniques of lawmaking,” she explained.
Fitriani added that the lawmaking process spans from how a statutory law passes the planning stage, the promulgation stage, until it becomes a positive law. The methods can be seen from the academic text, as a reason to why the law is formed. The lawmaking techniques are regulated in the Appendix of Law No. 12 of 2011.
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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 in the case No. 4/PUU-XIX/2021. The petition has the highest number of petitioners in the Court’s history.
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
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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
Zainal Arifin Mochtar Reveals Lawmaking Violations of Job Creation Law
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/12/2021 20:40 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 12, 2021 | 16:47 WIB 405