Preliminary hearing of the judicial review of the Job Creation Law for case No. 10/PUU-XX/2022, Thursday (1/27/2022). Photo by Humas MK/BPE.

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Thursday, January 27, 2022 | 11:57 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Article 53 paragraph (4) of Law No. 30 of 2014 on State Administration as referred to in Article 175 point 6 of Law No. 11 of 2020 on Job Creation on Thursday, January 27, 2022. The hearing for case No. 10/PUU-XX/2022 was filed by advocate Victor Santoso Tandiasa, PSHK (Indonesian Center for Law and Policy Studies) researcher Muhammad Saleh, and student Nur Rizqi Khafifah (Petitioners I-III).

Article 175 point 6 of the Job Creation Law reads, “If within the time limit as referred to in paragraph (2), the Government Agency and/or Official does not make a decision and/or take action, the petition is considered legally granted.”

The Petitioners’ legal counsel Parningotan Malau asserted why Article 175 point 6 of the Job Creation Law was unconstitutional. Due to the provision, Petitioner I had not received a state administrative decision despite having filed a petition to the Director-General of General Legal Administration of the Ministry of Law and Human Rights, because it had impaired court authority to rule on the petition, which was considered legally granted. As such, it had led to legal vacuum and legal uncertainty because the Petitioner’s petition had not been responded even after the 10-day deadline as referred to in Article 53 of the State Administrative Law, or after the 5-day deadline as referred to in the amendment to the provision in Article 175 point 6 of the Job Creation Law.

“As a result, Petitioner could not file a fictitious positive appeal to fight for his client’s interest and he could not perform the duty requested of him to obtain legal certainty [in the form] of a ruling on their petition,” said Petitioner Victor Santoso Tandiasa before Constitutional Justices Wahiduddin Adams (panel chair), Manahan M. P. Sitompul, and Saldi Isra virtually.

The a quo article could also potentially impair the constitutional rights of Petitioners II and III because, as citizens who are concerned with state administrative issues, the lack of court authority on such a fictitious positive appeal also affect their advocacy.

In the petitum, the Petitioners requested that the Court declare Article 53 paragraph (4) of Law No. 30 of 2014 on State Administration as referred to in Article 175 point 6 of Law No. 11 of 2020 on Job Creation, as ruled by the Court in Decision No. 91/PUU-XVIII/2020, conditionally unconstitutional insofar as not be interpreted, “Through the court to obtain a decision on the attainment of the petition.” Thus, it should read in full, “If within the time limit as referred to in paragraph (2), the Government Agency and/or Official does not make a decision and/or take action, the petition is considered legally granted, through the court to obtain a decision on the acceptance of the petition.”

Justices’ Advice

In response, Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to explain and detail their constitutional impairment due to the norm being petitioned. The Petitioners, he said, had not explained in detail their loss due to the lack of fictitious positive appeal as well as the legal vacuum.

Meanwhile, Constitutional Justice Saldi Isra observed the legal standing of Petitioner II and asked that he show proof of research that he had done on state administration. “The more complete the elaboration on legal standing, the harder for [the Petitioner] to not be declared having legal standing,” he said. 

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 01/28/2022 10:45 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.

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