Firman Soebagyo and Hendrik Lewerissa Explain Creation of Job Creation Law

The judicial review hearing of the Job Creation Law to hear witnesses Firman Soebagyo and Hendrik Leweriss for the House, Wednesday (10/19/2021). Photo by Humas MK/Ifa.

Tuesday, October 19, 2021 | 18:04 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 11 of 2020 on Job Creation on Tuesday, October 19, 2021. The plenary hearing, which was presided over by Chief Justice Anwar Usman and the other eight constitutional justices, heard House members Firman Soebagyo and Hendrik Lewerissa as witnesses for the House of Representatives (DPR) 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.

Firman Soebagyo said the six cases filed by the Petitioners concerns formal judicial review of Law No. 11 of 2020. He then explained the lawmaking stages. “Based on [my] knowledge, the formal judicial review in relation to the lawmaking process as referred to in the provision of Law No. 12 of 2011 on Lawmaking, the lawmaking process in essence involves the planning, drafting, discussion, ratification, and promulgation {of legislation,” he said.

Firman explained that his involvement in the formulation of the a quo law only concerned the planning and discussion stages, and that he was not involved in the drafting of the bill.

Inputs From Stakeholders

In terms of planning, Firman explained, the Job Creation Bill was in the 2020-2024 National Legislative Program (Prolegnas) and the Priority Prolegnas of 2020 as a bill sponsored by the Government. While compiling the two prolegnas, the House’s Legislation Body (Baleg) had received inputs from stakeholders both in person and in writing.

Firman said 28 individuals had provided those inputs, including former constitutional justices Jimly Asshiddiqie and Maria Farida Indrati, the provincial government of South Sumatera, the special provincial government of Yogyakarta, the provincial government of East Java, the provincial government of East Kalimantan, the provincial government of South Sulawesi, regional leaders communication forums, academic communities and the people, the TVRI supervisory board, the Indonesian Ulema Council (MUI), the Executive Board of Nahdlatul Ulama (NU), and the Central Executive Board of Muhammadiyah. Those two prolegnas were compiled by Baleg along with the Ministry of Law and Human Rights and the Drafting Committee of Laws (Regional Representatives Council/DPD).

Firman said the inputs concern the stakeholders’ aspiration on the Job Creation Bill, which was discussed twice at the Baleg (level I) and the House’s plenary session (level II). The appointment of the House’s Baleg as the apparatus to discuss the bill was based on the order of the House’s deliberative body. The first discussion level in Baleg took place on April 14, 2020 to October 3, 2020 both onsite and virtually (hybrid).

Discussion of DIMs

Meanwhile, Hendrik Lewerissa talked about the discussion of the problem inventory list (DIM). The House’s Baleg and the Government agreed to discuss all DIMs, starting from the less pressing ones to the more pressing and those that received much public attention. “During the discussion of DIMs, the House’s Baleg also received inputs from relevant stakeholders,” he said.

He then explained that it was agreed that the DIM on the bill in relation to Chapter IV on Manpower was to be discussed at the end of the level I discussion, considering that the House’s Baleg and the Government wanted optimal participation from relevant stakeholders, including workers and business owners, on the bill. The House through its factions and apparatuses even specifically received aspirations from representatives of workers and university students both at and outside of the DPR building.

Lewerissa also explained public participation on the bill. On August 12, 2020, House Deputy Speaker Azis Syamsudin and Baleg member Firman Soebagyo welcomed MUI leadership in a visit. And the next day, House Deputy Speakers Azis Syamsudin and Rachmat Gobel along with Baleg deputy chairman M. Nurdin received the National Confederation of Trade Unions (KSPN) in a visit to the House. Azis Syamsudin also welcomed all-Jabodetabek (Greater Jakarta Area) Student Executive Body (BEM). Next, on August 18, 2020, House Deputy Speaker Sufmi Dasco and Baleg deputy chairman Willy Aditya received the president of the Confederation of Indonesian Trade Unions (KSPI) Said Iqbal.

Also read: Job Creation Law Allegedly Commercializes Education

Petition No. 91/PUU-XVIII/2020 was filed by Hakiimi 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).

Also read: Court Holds Another Hearing on Job Creation Law

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.”

Also read: Textile Workers’ Union Federation Challenges Job Creation Law

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.

Also read: Deemed Unconstitutional, Job Creation Law Challenged by 15 Legal Entities

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.

Also read: Job Creation Law Challenged by 662 Workers

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 ever in the Court’s history.

The Petitioners filed for 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.

Also read: Federations and Industrial Workers Challenged Job Creation Law Formally

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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Firman Soebagyo and Hendrik Lewerissa Explain Creation of Job Creation Law