The Petitioner’s legal counsels at the preliminary hearing of the formal judicial review of the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation, Wednesday (2/22/2023). Photo by MKRI/Ifa.
Wednesday, February 22, 2023 | 19:37 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held a formal judicial review hearing of Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation against the 1945 Constitution on Wednesday, February 22, 2023 in the panel courtroom. The petition No. 22/PUU-XXI/2023 was filed by the Alliance of Workers Unions/Labor Unions.
At the hearing chaired by Constitutional Justice Arief Hidayat, legal counsel Ari Lazuardi said the Petitioners are leaders of federations and workers unions at the central level. They believe the Job Creation Perppu had resulted in new norms that could harm their interests. They suffered impairment such as work relations that allow for long employment agreements made for unspecified period of time, the ambiguity of minimum wage, the elimination of sectoral minimum wage, the reduction of negotiation rights of workers unions, the reduction of severance pay, the ambiguity of social values, and potential conflicts due to the ambiguity of transitional provisions that regulate new norms and norms that are removed from Chapter IV on Manpower. “If the formal judicial review petition is granted by the Court, the Petitioners’ potential impairment would not occur,” he stressed.
He added that for the reasons as mentioned, the Petitioners are qualified to file such a petition as per Article 1 paragraph (1) of the Constitutional Court Law.
Ari added that the touchstones was Article 22 paragraph (1) of the 1945 Constitution. However, Article 22A of the 1945 Constitution on lawmaking procedure, has resulted in Law No. 12 of 2011 on Lawmaking as amended by Law No. 13 of 2022. Thus, the formal review in this petition concerns the lawmaking process of the Job Creation Perppu, which the Petitioners believe to not be in line with the Constitution as stipulated in Article 22 paragraph (1) of the 1945 Constitution.
“And the stipulation is not in accordance with the mechanism as stipulated in the Lawmaking Law, Presidential Regulation No. 87 of 2014 on Implementing Regulations for Law No. 12 of 2011 on Lawmaking as last amended through Presidential Regulation No. 76 of 2021 (Perpres 76 of 2021),” he said.
Government’s Defiance
The Petitioners also said that the consideration and elucidation to the Job Creation Perppu state the perppu was following up on the Constitutional Court Decision No. 91/PUU-XVIII/2020. “The Constitutional Court Decision No. 91/PUU-XVIII/2020 confirms there has been a procedural violation resulting in formal defects in the formation of the Job Creation Law,” Ari added.
The Constitutional Court had ordered the legislatures resolve the violations and ordered that a standard legal basis be immediately formed as a lawmaking guideline for the omnibus law. Point 4 of the verdict and the Court’s legal considerations for Decision No. 91/PUU-XVIII/2020 state that the legislatures ought to make improvements to the lawmaking process Law No. 11 of 2020 on Job Creation in terms of standards, meaningful community participation, and substantial improvement of the text. However, the Job Creation Perppu proves that the President has not complied with the Court’s order in that decision.
“It is fitting that the Court to firmly states that the stipulation of the Job Creation Perppu is a form of defiance that harms the honor of the high state institution Constitutional Court. If this model is allowed to continue, the Petitioners worry the potential for weak checks and balances and public distrust of the importance of constitutional review because the decision is powerless before other state agencies. Moreover, in the issuance of a perppu, the actual meaning of compelling crisis situation, which is subject to the President’s [interpretation] could not be separated from public aspirations, but the Perppu tended to lack public aspirations. Based on insufficient reason for the urgency of issuing the Job Creation Perppu, [we appeal that] the Constitutional Court declare the Job Creation Perppu unconstitutional,” Ari said.
Justices’ Advice
In response, Constitutional Justice Suhartoyo highlighted the Petitioners’ status as legal subjects, as they are affiliated with the alliance of workers unions. He requested them to clarify who has the right to represent the organization in court.
“When a workers union represent the organization’s interest in and out of court, who should represent it? Can it be the chairperson and the secretary-general, or either one? If the representatives are the chairperson and secretary-general, but if the power of attorney is [signed] only by the chairperson without the secretary-general, […] please review these things,” he said.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioners to revise their legal standing. He observed that they were individual petitioners and legal entities. He asked them to elaborated their legal standing.
“Are all the petitioners legal entities or individuals? For the individuals, what are their losses? For the legal entities, what are their losses? It must be elaborated,” he said.
Lastly, Constitutional Justice Arief Hidayat stressed that the Court’s jurisdiction must be elaborated based on legislative hierarchy from the 1945 Constitution until the lowest regulation. He also asked that the background of the petition be elaborated: why the perppu must be challenged formally.
The panel of justices announced that the Petitioners would have 14 workdays to revise the petition, which must be received by the Registrar’s Office by Tuesday, March 7 at 14:30 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/25/2023 08:33 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.
Wednesday, February 22, 2023 | 19:37 WIB 238