The judicial review hearing of Law No. 11 of 2020 on Job Creation to hear experts for the House, Wednesday (10/13/2021). Photo by Humas MK/Bayu.
Thursday, October 14, 2021 | 14:22 WIB
JAKARTA, Public Relations—As a legislative product, legislation shows power sharing between the House of Representatives (DPR) and the president, said constitutional law professor of Padjajaran University (Unpad) I Gde Pantja Astawa at an evidentiary judicial review hearing of Law No. 11 of 2020 on Job Creation on Wednesday, October 13, 2021. The plenary hearing for 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 had been scheduled to hear experts for the House. It was presided over by Chief Justice Anwar Usman alongside the other eight constitutional justices.
“Legislation as a legislative product shows power sharing between the House and the president. This means that even though the original power of lawmaking lies with the House, the president has the right to propose a bill to the House,” Astawa said.
In response to the formal judicial review petitions No. 91 and 103/PUU-XVIII/2020, he explained, “The formal judicial review, theoretically and in practice, serves to assess whether a legislative product such as legislation is realized through the procedure set in statutory laws and regulations or not.”
As such, he added, it concerns procedural matters in lawmaking. In Indonesia, the 1945 Constitution determines the overview of the lawmaking procedure in Article 5 paragraph (1) and Article 20.
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In Line with Procedure
The procedure in relation to the discussion, approval, ratification, up to the promulgation of a bill is regulated in Article 20 paragraph (2) through (5) of the 1945 Constitution. Astawa said that as long as the 1945 Constitution serves as the touchstone against with the Job Creation Law is formally reviewed, the procedure for its creation must follow that in the 1945 Constitution.
“First, the initiative of the Job Creation Bill was from the president. Second, the proposal was made to the House to discuss and approve jointly. Third, the president had the attributive authority to approve the bill that had been approved jointly to be a law, which was then promulgated in the state gazette,” he explained.
An issue emerged when the Petitioners based the judicial review petition of the Job Creation Law on Law No. 12 of 2011 on Lawmaking. “The [Lawmaking] Law is an organic law, a law formed by the mandate of Article 22A of the 1945 Constitution, which stipulates that any further provisions on lawmaking procedure be stipulated by virtue of law.
Based on the Lawmaking Law, on which the petition is based, Astawa said, all of the subject matters of the Petitioners’ petitions have been responded to by the House at the Court’s hearings.
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President-House Joint Approval
Muhammad Fauzan, another expert for the House for cases No. 107/PUU-XVIII/2020 and 6/PUU-XIX/2021, stressed that Article 1 paragraph (3) of the 1945 Constitution emphasizes that Indonesia is a law-based state.
“As a consequence for being a law-based state, all of the people’s activities, including the implementation of the executive, legislative, and judicial state powers, must be based on law,” said the constitutional law expert.
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Fauzan said in order to assess whether actions by the community or activities by the organizers of state powers are in accordance with the law, judicial review through the judiciary is taken. The legislative power of the state is often understood as the lawmaking power, which based on Article 20 paragraph (1) of the 1945 Constitution lies with the House. However, the actual process takes a collaboration between the House and the president.
“It can be concluded from Article 20 paragraphs (2), (3), (4), and (5) of the 1945 Constitution of the Republic of Indonesia, each bill must be discussed jointly between the House and the President for mutual approval. If the bill does not get mutual approval, it cannot be submitted again in the House session for that period,” he said. He also said that bills can be proposed by either the president or the House.
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Social and Economic Welfare
Another expert for the House, Yose Rizal Damuri, responded to the cases No. 105/PUU-XVIII/2020 and No. 4/PUU-XIX/2021. He explained that improving social and economic welfare is an important matter as mandated in the 1945 Constitution. Better welfare can only be achieved if economic activities provide sufficient benefits.
“It turns out that we still have challenges that are quite broad and very difficult to provide economic activities that provide sufficient economic benefits for the people of Indonesia. Especially the workforce in Indonesia,” said the Head of the Department of Economics of the Center for Strategic and International Studies (CSIS).
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Yose then described employment in Indonesia, which is mostly in the informal sector and dominated by workers without work agreements. In 2018, 15 million out of 27.4 million employees were workers who often did not get paid. “Eighteen percent or 24 million people in 2018 had small businesses whose income were insufficient,” he said.
Informal workers, he said, mostly work alone and had to do their own business. The income of small business owners in 2018 was only around Rp1.7 million per month, while for informal workers it only amounted to Rp1.3 million.
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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.
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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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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
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/Lulu A.
Editor : Lulu Anjarsari P.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/15/2021 08:52 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, October 14, 2021 | 14:22 WIB 332