Experts for the Government testifying virtually at thejudicial review hearing of Law No. 11 of 2020 on Job Creation, Wednesday (9/1/2021) in the plenary courtroom. Photo by Humas MK/Panji.
Thursday, September 2, 2021 | 19:20 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 11 of 2020 on Job Creation virtually from the plenary courtroom on Wednesday, September 1, 2021. Six cases were heard at the hearing chaired by Chief Justice Anwar Usman alongside the other constitutional justices: 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. The hearing had been scheduled to hear the experts for the Government.
Constitutional law expert Satya Arinanto testified for the Government for the case No. 91/PUU-XVIII/2020. He said two months ago President Joko Widodo said in his speech that the Omnibus law had synchronized 70 overlapping laws and regulations.
“In lexical or dictionary perspective, the omnibus law is a law that regulates different affairs or one law directed to an alternative, such as an omnibus law on the judiciary or crime,” he said.
Nothing New
From the perspective of legal history, Satya added, the National Law Development Agency (BPHN) Head Sunaryati Hartono said that in 1819-1949 in the Dutch East Indies around 7,000 laws and regulations were in force. Hartono, who had studied those old laws and regulations, said around 400 are currently still in effect. Meanwhile, the legal system is still developing through the National Legislative Program (Prolegnas) etc.
“The question is, from the 7,000 laws and regulations, 400 remain. This means there are 6,600 laws and regulations have become new ones [through the omnibus method that we are currently debating. So actually from the history of Indonesian law, the omnibus law is nothing new,” Satya said.
He explained that until the Old Order, the Government had issued 83 national laws and regulations to repeal 199 produced by the Dutch.
He added that the arguments of the Petitioners of case No. 91/PUU-XVIII/2020 could not be accepted as they argued that the omnibus method contradict the lawmaking technique.
“The omnibus method is a success and can be implemented in the future,” he said.
A Definite Method
Meanwhile, regarding the case No. 107/PUU-XVIII/2020 that legal expert Lita Tyesta A. L. W. said that for realizing good legislation, definite, standard procedures and methods that bounds all lawmaking institutions must be used in lawmaking. “For that end, Law No. 12 of 2011 Lawmaking was created,” she said.
Lita revealed that lawmaking included the planning, drafting, discussion, ratification, stipulation, and promulgation stages. These stages must be undergone when forming laws and regulations. “However, the stages are adjusted to the needs, conditions, and types and hierarchy of legislation, she said.
She agreed with the previous expert that the Omnibus Law was an effort to form legislation that could solve overregulation issue for the arrangement of legislation.
Lawmaking Procedure
Meanwhile, expert Maruarar Siahaan, who testified for the Government for case No. 105/PUU-XVIII/2020, said that the Omnibus Law covered a vast variety of topics and might not always seem great from the lawmaking perspective. Article 51 of the Constitutional Court Law stipulates that the formulation of laws that are unconstitutional must be put forward.
The formal constitutional justice said that the lawmaking process is defined as a series of actions or steps or the official way to achieve a goal. The formal judicial review, he said, concerns lawmaking procedure, which includes the planning, drafting, discussion, ratification, stipulation, and promulgation stages.
Siahaan disagreed with the Petitioners of case No. 105/PUU-XVIII/2020, who argued that the Job Creation Law was contrary to Article 22A of the 1945 Constitution for not meeting the formal requirements. The Petitioners also argued that the law was founded on an insufficient academic text that did not comprehensively analyzed the changes in 79 laws, especially the second part of Chapter IV on Manpower in Law No. 13 of 2003 on Manpower. They also alleged that the law did not justify the urgency of the changes to the Manpower Law.
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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
Three Experts Testify in Cases on Job Creation Law
Said Iqbal: Job Creation Law Prepared Sans Public Participation
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/6/2021 13:34 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, September 02, 2021 | 19:20 WIB 510