Legal counsel Caisa Aamuliadiga explaining the revisions to the petition at the judicial review hearing of Perppu No. 2 of 2022 on Job Creation, Monday (2/27/2023). Photo by MKRI/Ifa.
Monday, February 27, 2023 | 15:45 WIB
JAKARTA (MKRI) — Another formal judicial review hearing of the Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation took place in the Constitutional Court (MK) on Monday, February 27, 2023. The Petitioners, 13 workers unions, allege that the perppu is legally flawed for not meeting lawmaking requirements. The petition revision hearing for the case was chaired by Constitutional Justice Wahiduddin Adams in the plenary courtroom.
The Petitioners’ legal counsel Caisa Aamuliadiga stated that overall, the justices’ advice had been in the preliminary hearing had been accommodated in the revised petition. “First, it emphasizes the authority of the chairperson and secretary or others as appointed to represent the organizations in court. We have quoted the Petitioners’ articles of association and relevant laws and regulations, for example Petitioner III included Article 37 of their article of association, which expressly authorizes administrators to appear before the Industrial Relations Court and other hearings. Then Petitioner VIII included Article 19 paragraph (1) of their statute/bylaw, which states that the management is carried out by the president and assisted by a secretary-general,” she said.
Apart from that, she added, it is customary for trade unions to be represented by a chairperson and a secretary or others to act on behalf of the unions. The chairperson and secretary almost always represent trade unions in activities dealing with employers or government agencies such as signing collective agreements, managing labor strikes, and other labor activities. This is regulated in Article 140 paragraph (2) of the Manpower Law and Article 28 paragraph (1) of the Regulation of the Minister of Manpower No. 28 of 2014.
The Petitioners have legal standing, she said, as they are groups of people and legal entities as referred to in Article 4 paragraph (1) of Constitutional Court Regulation (PMK) No. 2 of 2021. The Job Creation Perppu has resulted in potential constitutional harm to workers who are affiliated with the Petitioners, such as the the president’s vast authority to make government regulations, long overtime, reduction of wage, etc. Even though there are clear potential losses that the Petitioners suffered, the Constitutional Court Decision No. 27 of 2009 applied a more lax standard to formal judicial review. According to the decision, the legal standing only needs a mention of a direct link with the law being petitioned, in this case the Job Creation Perppu amending the Manpower Law, which clearly has a direct link to the Petitioners and their members.
Furthermore, legal counsel Muhamad Raziv Barokah said point D6 of the object of the case on meaningful participation had been revised. “It is important for us to explain that Decision No. 91 of 2020 stipulated that the Job Creation Law be suspended and time is allotted for its revision for the next two years, and of course the most important order conveyed by the Constitutional Court is to promote meaningful participation in the revision of the Job Creation Law, which is what the Government, both the President and the House, are trying to avoid,” he explained.
Also read: Workers Unions Challenge Perppu on Job Creation
The petition was filed by 13 workers unions: Federasi Kesatuan Serikat Pekerja Nasional (Petitioner I), Federasi Serikat Pekerja Farmasi dan Kesehatan KSPSI (Petitioner II), Federasi Serikat Pekerja Kimia Energi dan Pertambangan KSPSI (Petitioner III), Federasi Serikat Pekerja Logam, Elektronik, dan Mesin SPSI (Petitioner IV), Federasi Serikat Pekerja Pariwisata dan Ekonomi KSPSI (Petitioner V), Federasi Serikat Pekerja Listrik Tanah Air (Pelita) Mandiri of West Kalimantan (Petitioner VI), Federasi Serikat Pekerja Pertanian dan Perkebunan (Petitioner VII), Federasi Serikat Pekerja Rakyat Indonesia (Petitioner VIII), Gabungan Serikat Buruh Indonesia (Petitioner IX), Konfederasi Buruh Merdeka Indonesia (Petitioner X), Konfederasi Serikat Pekerja Seluruh Indonesia (Petitioner XI), Persaudaraan Pekerja Muslim Indonesia (Petitioner XII), and Serikat Buruh Sejahtera Independen ’92 (Petitioner XIII).
The Petitioners believe the Job Creation Perppu had not met the lawmaking provision of Article 22A of the 1945 Constitution. They alleged it a means to revive Law No. 11 of 2020 on Job Creation, which the Court had declared conditionally unconstitutional in Decision No. 91/PUU-XVIII/2020. The Job Creation Law was part of an omnibus law consisting of eleven clusters, among which serves to simplify land permits, investment requirements, manpower, provide ease and protection for MSMEs (UMKM), allow ease of business, support research and innovation, facilitate administration, facilitate sanctions, support land control, provide ease to government projects, and to manage Special Economic Zones (KEK).
Meanwhile, the Job Creation Perppu comprises eleven combined clusters of 78 laws, such as Staatsblad of 1926 No. 226 juncto Staatsblad of 1940 No. 450 on Public Disturbance Law (Hinderordonnantie), Law No. 2 of 1981 on Legal Metrology, Law No. 32 of 1982 on Company Registration Mandate, Law No. 6 of 1973 on General Provisions of Taxation, Law No. 17 of 2019 on Water Resources, and Law No. 22 of 2019 on Sustainable Agricultural Systems.
“In essence, the formation (of the Job Creation Perppu) did not follow the provision relating to compelling crisis situation based on Article 22 paragraph (1) of the 1945 Constitution, since there were blatant and real violations that the public is aware of. It is even not only formally defective, but also materially problematic,” said legal counsel Muhamad Raziv Barokah at the preliminary hearing on February 14.
Legal counsel Caisa Aamuliadiga asserted that the Petitioners did not mean to say that the President could not issue a perppu to implement the Court’s ruling. In a serious and real compelling crisis situation, for the nation’s interest and to defend the state, a perppu may be issued to comply with the Constitutional Court’s decision.
“Non-compliance to the Constitutional Court’s decision is a bad precedent by the President and set an example that Constitutional Court decisions may be disregarded. If this is left to go on, this bad precedent may reoccur when the state’s situation is declared in crisis, without any intention to safe the nation and state, a president may issue a perppu that will annul the Constitutional Court’s decision,” she said on site from the Court’s main building.
Therefore, in the petitum, the Petitioners requested that the justices declare the Job Creation Perppu not meeting lawmaking provisions based on the 1945 Constitution, unconstitutional, and not legally binding.
Author : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/28/2023 11:46 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.
Monday, February 27, 2023 | 15:45 WIB 188