Director-General of Legislation of the Law and Human Rights Ministry Asep N. Mulyana testifying on behalf of the Government at the material judicial review hearing of the Job Creation Law, Thursday (7/6/2023). Photo by Humas MK/Panji.
JAKARTA (MKRI) — The Constitutional Court (MK) held another formal judicial review hearing of Law No. 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation into Law on Thursday, July 6, 2023. This fourth hearing was presented the House of Representatives’ (DPR) and the President/Government’s testimonies.
However, the House was absent and had requested a delay. Meanwhile, the President/Government was represented by Director-General of Legislation of the Law and Human Rights Ministry Asep N. Mulyana.
The hearing was for four cases: No. 40/PUU-XXI/2023, filed by petitioners, consisting of ten workers’ unions and 111 individuals; No. 41/PUU-XXI/2023, filed by the Confederation of All Indonesian Labor Unions (KSBSI), represented by the president of its national executive council Elly Rosita Silaban and secretary-general Dedi Hardianti; No. 46/PUU-XXI/2023, filed by 14 legal entities; and No. 50/PUU-XXI/2023, filed by the Labor Party, represented by president Said Iqbal and secretary-general Ferri Nuzarli.
House’s Swift Response
In his testimony, Asep said that based on Article 52 paragraph (1) of the Lawmaking Law, a perppu must be submitted to the House at its following session or the first session after it is stipulated. As such, the meaning of the discussion hearing is not explained, as the article only regulates the approval and not only from the House. Therefore, if the House approves of the perppu at its plenary session, it will be promulgated as a law.
Asep added that the Constitutional Court Decision No. 138/PUU-VII/2009 stipulates that approval of a perppu at a following session can occur when it is drafted by the president but politically leads to certain things that keeps the House from carrying a session to approve it.
“The swift response by the House during the discussion and approval of the perppu into Law No. 6 of 2023 is the people’s representatives’ common view of the compelling crisis situation that drives the Government and to provide certainty over the policy that the Government set in the perppu,” he said before Deputy Chief Justice Saldi Isra and the other constitutional justices at the plenary courtroom.
Following Lawmaking Law
The Government asserted that the formation of the Job Creation Law is in line with lawmaking legislation since necessary process has been undergone. On January 4, 2023 a committee was formed across ministries to stipulate the perppu into law. On January 5, the bill was submitted. On January 9, Government representatives were appointed for discussing the bill in the House and the bill was submitted to the House. On March 27, the House approved the stipulation of the perppu. On March 31, the president ratified it and the Minister of State Secretariat was promulgated into law.
“For the interpretation of a compelling crisis situation, the Government refers to the Constitutional Court Decisions No. 003/PUU-III/2005 and No. 138/PUU-VII/2009. It stated that such a situation is not always perceived as a dangerous situation where there is civil, military, or war emergency. Instead, it is the president’s subjective discretion, which turns objective after the House approves it to be stipulated into law,” Asep explained.
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The petitioners for case No. 40/PUU-XXI/2023 include Federasi Serikat Pekerja Kimia, Energi, dan Pertambangan Serikat Pekerja Seluruh Indonesia (FSP KEP SPSI); Persatuan Pegawai Indonesia Power (PP IP); Federasi Serikat Pekerja Indonesia (FSPI); and others. They allege that the Job Creation Law is legally flawed. They question the House’s approval of the stipulation of Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation into law. They assert that this means the House has approved the president’s justification of the compelling crisis situation for the stipulation of the perppu.
The Petitioners also allege that the enactment of Article 81 of the Job Creation Law has led to actual or at least potential losses in the part of the Petitioners and could lead to loss of job. They allege that the Law has harmed many workers because its implementation facilitates layoffs. In general, changes in manpower as regulated in the articles of the Job Creation Law have degraded state protections for workers, which was previously regulated appropriately in Law No. 13 of 2003 on Manpower.
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KSBSI Challenges Stipulation of Job Creation Law
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At the preliminary hearing on Wednesday, May 10, the Petitioner asserted that the subject matters of the formal judicial review petition of the Job Creation Law, which originated from Perppu No. 2 of 2022, did not meet the provisions based on the 1945 Constitution for eight reasons. Among them are that the House of Representatives’ (DPR) approval of the stipulation of the perppu into law was formally or constitutionally flawed; that the House’s session to decide on its stipulation did not meet quorum; that it is against the Constitutional Court Decision No. 91/PUU-XVIII/2020; that it did not meet the requirements for a compelling crisis situation; that it was not clear who proposed the perppu; that it did not meet the requirements for harmony between type, hierarchy, and substance; and that it did not meet the principles of clarity and transparency. Therefore, they requested that the Job Creation law be declared legally flawed and unconstitutional.
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Formation of Job Creation Law Questioned Again
Legal Entities Clarify Background of Petition against Job Creation Law
The petition No. 46/PUU-XXI/2023 was filed by 14 legal entities. At the preliminary hearing on Tuesday, May 16, the Petitioners explained that the president had stipulated the Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation on December 30, 2022 during the House’s recess for 2022/2023, which lasted since December 16, 2022 to January 9, 2023. Then the House resumed its sessions on January 10 until February 16, 2023. The perppu should have been ratified at a plenary session no later than February 16, but it was only approved and promulgated on March 21, 2023 during the March 14 to April 13 session. So, it has been proven that the Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation did not have the House’s approval on the first session, no later than February 16, 2023, the Petitioners allege.
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Labor Party Asks Court to Annul Job Creation Law
Labor Party Adds Evidence for Formal Petition of Job Creation Law
Material Review Hearing on Job Creation Law Delayed until Formal Review Ruling
At the preliminary hearing for case No. 50/PUU-XXI/2023 on Tuesday, May 23, the Labor Party argued that the stipulation of the Job Creation Law, which is not in line with the Constitutional Court Decision No. 91/PUU-XVIII/2020 and Article 1 paragraph (3) of the 1945 Constitution, which stresses that Indonesia is a rule of law. The president and House’s disregard of the Court’s decision was clearly in violation of the principle of a rule of law, which dictates that all state institutions, including the legislatures, comply with and abide by the law and the Constitution, including the final and binding decision of the Constitutional Court.
Author : Sri Pujianti
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
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, July 06, 2023 | 16:48 WIB 278