Govt Regulation in Lieu of Law on Job Creation Deemed Not Having Urgency

Preliminary hearing of the formal and material judicial review of the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation, Thursday (1/19/2022). Photo by MKRI/Ifa.

Thursday, January 19, 2023 | 16:01 WIB

JAKARTA (MKRI) — After the Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation was passed on December 30, 2022, several Petitioners filed a formal and material judicial review petition on it to the Constitutional Court (MK). The preliminary hearing for cases No. 5/PUU-XIX/2023 and 6/PUU-XIX/2023 was held in the panel courtroom on Thursday, January 19, 2023.

Petition No. 5/PUU-XIX/2023 was filed by health law lecturer Hasrul Buamona, Migrant Care administrator Siti Badriyah, legal consultant Harseto Setyadi Rajah, entrepreneur Jati Puji Santoro, and law students at Sahid University Jakarta Syaloom Mega G. Matitaputty and Ananda Luthfia Rahmadhani (Petitioners I-VI). Petition No. 6/PUU-XIX/2023 was filed by the Confederation of All Indonesian Labor Unions (KSBSI).

The hearing was presided over by Constitutional Justices Wahiduddin Adams (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh. Legal counsels for the Petitioners of case No. 5/PUU-XIX/2023, Viktor Santoso Tandiasa and Zico Leonard, took turns explaining how the perppu had violated Article 1 paragraph (3), Article 22 paragraph (1), and Article 22A of the 1945 Constitution as well as the Constitutional Court Decisions No. 138/PUU-VII/2009 and 91/PUU-XVII/2020.

The Petitioners believe the president’s subjective prerogative to issue a perppu must be based on an objective assessment of the situation. They asserted that the perppu did not meet lawmaking requirements as the Government had used Law No. 11 of 2020 on Job Creation to implement urgent needs for legal issues where there is no legal vacuum.

Tandiasa added that based on the Constitutional Court Decision No. 91/PUU-XVII/2020, Law No. 11 of 2020 on Job Creation is conditionally constitutional because its academic text and plans are not easily accessible, the lawmaking process was not based on clear procedure, there were changes on the substance after joint approval by the House of Representatives (DPR) and the President, and the formation was against lawmaking principles, thus formally defective.

“However, the Government issued Perppu No. 2 of 2022 by not meeting the demand and verdict of Decision No. 91/PUU-XVII/2020 and not meeting Decision No. 138/PUU-VII/2009. This of course led to legal uncertainty and [the perppu’s] formation was against Article 22 paragraph (1) of the 1945 Constitution and did not meet the requirement of an objective assessment of a compelling crisis situation,” he explained.

Therefore, in the provisional petition, the Petitioners requested that the Court declare the perppu postponed until a final decision is handed down. 

Fifty-Five Articles Petitioned

Meanwhile, the Petitioner of case No. 6/PUU-XIX/2023, represented by Saut Pangaribuan, believe that 55 articles in the perppu were unconstitutional. They believe those norms have eliminated the constitutional rights of laborers that are guaranteed in the 1945 Constitution and Law No. 13 of 2003 on Manpower. The Petitioners believe there is no legal vacuum in manpower law and that Law No. 13 of 2003 and other manpower legislation are still in force.

“Therefore, the norms were unclear and even led to legal uncertainty,” Pangaribuan said virtually at the hearing alongside legal counsels Haris Manalu, Parulian Sianturi, and Supardi.

Therefore, the Petitioners requested that the Court grant their formal petition and declare the perppu unconstitutional.

Justices’ Advice

In response to these petitions, Constitutional Justice Manahan M. P. Sitompul asserted that the formal judicial review petition would receive a special treatment. However, he noted that the Petitioners of case No. 5/PUU-XIX/2023 had not explained the causality between the norms and their constitutional rights.

He advised the Petitioner of case No. 6/PUU-XIX/2023 to explain the requirements for the petitioners in the case. He also highlighted the representatives for the organization in and out of court to file this petition.

Next, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners of cases No. 5/PUU-XIX/2023 and 6/PUU-XIX/2023 to review the Constitutional Court Regulation (PMK) No. 2 of 2021 on the procedure of the judicial review of laws and perppu, especially the deadline. He requested that they explain the deadline. “This is the entry to the material judicial review of a perppu,” he said.

Meanwhile, panel chair Constitutional Justice Wahiduddin Adams advised the Petitioners to mention the deadline for the formal petition and to explain how it violated the Lawmaking Law. He also asked the Petitioners of case No. 5/PUU-XIX/2023 to explain their impairment one by one.

The justice panel gave the Petitioners 14 workdays to revise the petition and submit it by February 1, 2023 at 13:00 WIB to the Registrar’s Office to receive schedule for the next hearing. 

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/26/2023 08:36 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, January 19, 2023 | 16:01 WIB 544