Constitutional Justices Question Academic Text of Job Creation Law

Government witnesses taking oath virtually before testifying at the judicial review hearing of Law No. 11 of 2020 on Job Creation, Thursday (9/23/2021). Photo by Humas MK/Ifa.

Thursday, September 23, 2021 | 17:27 WIB

JAKARTA, Public Relations—The constitutional justices leveled several questions regarding the creation of Law No. 11 of 2020 on Job Creation at three fact witnesses that the Government presented at a hearing on Thursday, September 23, 2021. The fact witnesses are Nasrudin, a senior lecturer at the Ministry of Law and Human Rights, Law Faculty dean of the State University of Semarang (Unnes) Rodiyah, and the Head of the National Law Planning Center of the Ministry of Law and Human Rights Joko Puji Raharjo. Six cases were heard at the plenary hearing chaired by Chief Justice Anwar Usman: 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 three witnesses for the Government.

Constitutional Justice Saldi Isra first questioned Rodiyah of the Forum Group Discussion (FGD) on “The Implementation of the Job Creation Bill in Indonesia.” He asked whether she had seen the academic text for the bill at the FGD on January 26, 2020 in Surakarta. “At the time, was the academic text or the early draft of the bill shown, or was it only an exchange of ideas?” he asked, which she answered in the negative.

“The (FGD) presented the materials and concepts of four speakers,” she said.

Also read: Job Creation Law Allegedly Commercializes Education

Justice Saldi asked the same question to Joko Puji Raharjo, who had testified before regarding a meeting to discuss the bill in Yogyakarta, Makassar, and Medan.

“When you attended the series of meetings you admitted to attending, was the academic text already available or were [the attendees] only discuss the inclusion of the idea in the Prolegnas [National Legislative Program]?” he asked.

Joko replied that the meetings at those three cities were to complete the existing academic text. He said the text had been drafted by the sponsor, the Coordinating Ministry for Economic Affairs. “I heard the academic text had been available, but I didn’t see it,” he answered.

He also replied to Justice Saldi’s question of the law clusters. He revealed there were 11 clusters and 79 laws that were interrelated.

Justice Saldi also asked Nasrudin about those clusters and the number of chapters the Government submitted to the House of Representatives (DPR).

“There were 6 chapters and 11 law clusters. I forgot about the articles, Your Honor,” Nasrudin answered. He admitted that additional articles were raised after the Government and the House’s approval.

Also read: Petitioners of Job Creation Law Request Provisional Decision

Fact Witnesses

Nasrudin, a senior lecturer at the Ministry of Law and Human Rights, received the ministry’s mandate to oversee and ensure that the creation of the Job Creation Law had followed Law No. 12 of 2011 on Lawmaking.

“I followed the creation process of the Job Creation Law starting from the planning, drafting, discussion at the House, followed by ratification by president, [to] promulgation, and socialization stages,” he said regarding case No. 91/PUU-XVIII/2020.

At the planning stage, he was directly involved in preparing the academic text of the Job Creation Bill to ensure that the text’s drafting had followed the techniques and format as referred to in Appendix I of Law No. 12 of 2011. The text consisted of title; preface and table of content; Chapter I Introduction; Chapter II Theoretical and Practical Empirical Review; Chapter III Evaluation and Analysis of Relevant Laws; Chapter IV Philosophical, Sociological, and Juridical Bases; Chapter V Scope of Regulation and Scope of the Job Creation Bill; and Chapter VI Conclusion.

“We ensured that the format was followed in the academic text of the Job Creation Bill. In drafting the text, we focused more on ensuring that the articles of the 76 laws that were amended, deleted, or added in the Job Creation Law had been evaluated and analyzed in depth and comprehensively so that the Law can be implemented in order to create jobs through ease of business, permit, investment, and development, and implementation of micro, small, and medium enterprises,” Nasrudin explained.

He also said that it was ensured that the bill was included in the medium-term Prolegnas and the 2020 Priority Prolegnas. Materials from Chapter III of the text, which contained the evaluation and analysis of articles of the 76 laws that were amended, deleted, or added were then put in the bill.

Also read: Govt Unprepared to Testify in Job Creation Law Case

FGD on “The Implementation of Job Creation Bill”

Meanwhile, Law Faculty dean of the State University of Semarang (Unnes) Rodiyah testified about the FGD on “The Implementation of the Job Creation Bill in Indonesia” that the Coordinating Ministry for Economic Affairs organized on Sunday, January 26, 2020 in Surakarta.

She admitted to attending and participating in the FGD actively. Forty-seven participants of the FGD were from the Coordinating Ministry for Economic Affairs, the Ministry of Law and Human Rights, the Ministry of State Secretariat, several public universities, and others. The FGD was aimed at following up on the Prolegnas of Priority Bill 2020 that the Government and House had jointly approved.

“The FGD’s objective was to obtain inputs and/or directives from academics as well as alternative solutions for potential constraints in the implementation of the Job Creation Bill in Indonesia as well as the policy for harmonizing and finalizing the concept of the academic text and the bill,” she said.

Selanjutnya Rodiyah menyampaikan kesimpulan hasil FGD dari para peserta FGD. Di antaranya dari Kepala Biro Hukum, Persidangan dan Humas Kemenko Perekonomian, Ketut Hadi Pratama yang menyatakan Omnibus Law selain untuk meningkatkan iklim investasi, juga bertujuan untuk membuka lapangan pekerjaan. Omnibus Law secara sederhana merupakan kodifikasi hukum, semua peraturan terkait perizinan akan disederhanakan dan dikembalikan kewenangannya kepada Presiden. Dengan demikian, Omnibus Law akan menghapus, mencabut pasal-pasal dalam undang-undang yang terkait dengan perizinan.

She then revealed the FGD’s conclusion, including that by the Head of the Legal, Court, and Public Relations Bureau of the Coordinating Ministry for Economic Affairs Ketut Hadi Pratama, who said that the omnibus law would not only improve investment climate, but also open jobs. The omnibus law, put it simply, is the codification of laws, where all regulations on permits would be simplified and whose authority be returned to the president. Therefore, the omnibus law would repeal articles on permits in laws.

Kesimpulan berikutnya, kata Rodiyah, dari Kepala Badan Pembinaan Hukum Nasional (BPHN) Kementerian Hukum dan HAM, Benny Rianto yang menyatakan Naskah Akademik dalam RUU Cipta Kerja paling sedikit harus memuat pendahuluan, latar belakang dan tujuan penyusunan kajian teoritis dan praktik empirik evaluasi dan analisis peraturan perundang-undangan terkait, landasan filosofi, sosiologis yuridis, jangkauan arah pengaturan dan ruang lingkup materi muatan undang-undang.

The next conclusion, she revealed, was made by the Head of the National Law Development Agency (BPHN) of the Ministry of Law and Human Rights Benny Rianto: the academic text in the Job Creation Bill must at least contain introduction; background; objective of the theoretical and practical empirical review; analysis of relevant laws; philosophical, sociological, and juridical bases; scope of regulation; and scope of the law.

Also read: Govt’s Expert: Job Creation Law Anticipates Negative Impacts of Globalization

Saksi Penyusunan UU Cipta Kerja

Witness of the Drafting of Job Creation Law

Selanjutnya, Saksi Fakta Joko Puji Raharjo S.H. M.Hum menyampaikan kesaksian untuk Perkara 6/PUU-XIX/2021. Joko menyaksikan, memahami, mengikuti terkait proses penyusunan UU No. 11 Tahun 2020 tentang Cipta Kerja. Berkaitan dengan proses pengusulan dalam Prolegnas, ungkap Joko, pada 21 November 2019 di Badan Pembinaan Hukum Nasional diselenggarakan rapat untuk menyusun konsep awal daftar RUU Prolegnas Jangka Menengah Tahun 2020-2024 serta RUU Prolegnas Prioritas Tahun 2020 yang merupakan usulan dari pemerintah.

Joko Puji Raharjo then testified for the case No. 6/PUU-XIX/2021. He admitted to witnessing, understanding, and following the creation process of Law No. 11 of 2020 on Job Creation. To propose its inclusion in Prolegnas, he said, on November 21, 2019 a meeting took place at BPHN to draft the initial list of the 2020-2024 medium-term Prolegnas bills and the 2020 Priority Prolegnas bills, which the Government proposed.

“Usulan ini disusun berdasarkan prioritas nasional dalam rangka untuk mendukung pembangunan nasional, di samping itu adanya ketersediaan data dukung atau usulan dari masing-masing kementerian dan lembaga,” jelas Joko.

“The recommendation was made based on the national priority in order to support national development, and on the availability of supporting data and recommendations from each of the ministries and agencies,” he explained.

Setelah itu, sambung Joko, ditetapkanlah kriteria RUU yang diprioritaskan pada 2020 dalam rangka peningkatan perekonomian, mengakomodasi perkembangan teknologi digital, penegakan dan pelayanan hukum, sosial budaya dan kesejahteraan rakyat, kesiapan teknis terkait dengan RUU, dan lainnya. “RUU Cipta Kerja dimasukkan dalam kategori sangat diprioritaskan, karena memenuhi kriteria mendukung pembangunan nasional,” jelas Joko.

After that, he added, the criteria for the priority bills in 2020 were determined for improving the economy, accommodating advances in digital technology, upholding the law, improving the people’s sociocultural conditions and welfare, preparing the technicality of the bills, and so on. “The Job Creation Bill of utmost priority as it fulfilled the criteria of supporting the national development,” he said.

Also read:

Court Holds Another Hearing on Job Creation Law

Petitioners of Job Creation Law Convey Revisions

Petition No. 91/PUU-XVIII/2020 was filed by Hakimi Irawan Bangkid Pamungkas and four other individuals. They believe the Court’s reasoning for the 45-day deadline of the formal judicial review is the swift confirmation and legal certainty of whether a law was formally legitimate or not as the review would repeal the law. Meanwhile, the petition No. 103/PUU-XVIII/2020 was filed by the Confederation of All Indonesian Labor Unions (KSBSI), represented by Elly Rosita Silaban and Dedi Hardianto. They filed for the formal and material judicial review of Articles 42, 43, 44, 56, 57, 59, 61, 61A, 66, and 88 of Law No. 11 of 2020.

Also read:

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 the second part of Chapter IV of Law No. 11 of 2020 on Job Creation: Article 81 point 1 (Article 13 paragraph (1) letter c of Law No. 13 of 2003 on Manpower) on work training by the company’s work training department, and Article 81 point 2 (Article 14 paragraph (1) of Law No. 13 of 2003) that private work training agencies as referred to in Article 13 paragraph (1) letter b must meet the requirements of the regency/city government-issued business permit.

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Deemed Unconstitutional, Job Creation Law Challenged by 15 Legal Entities

Fifteen Legal Entities Revise Job Creation Law Petition

Job Creation Law Challenged by 662 Workers

Number of Petitioners of Job Creation Law Reduced

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. Meanwhile, 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 both materially and formally in the case No. 4/PUU-XIX/2021. The petition has the highest number of petitioners in the Court’s history.

Also read:

Federations and Industrial Workers Challenged Job Creation Law Formally

FSPMI Revises Petition on Job Creation Law

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. Therefore, in the petitum, they requested that the Court declare the law unconstitutional and repeal it.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)

Translation uploaded on 9/23/2021 20:24 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 23, 2021 | 17:27 WIB 512

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Constitutional Justices Question Academic Text of Job Creation Law