Zainal Arifin Mochtar and Bivitri Susanti presented testifying as experts for Petitioners at the formal judicial review hearing of the Job Creation Law, Wednesday (7/26/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The stipulation of a government regulation in lieu of law (perppu) must be based on a compelling crisis situation. However, 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 did not meet that requirement and, thus, is an unlawful legal product.
The statement was made by constitutional law expert of Gadjah Mada University Zainal Arifin Mochtar, who testified for the Petitioners at the formal judicial review of the Job Creation Law on Wednesday, July 26, 2023. This sixth hearing presented experts for the Petitioners of case No. 40/PUU-XXI/2023—121 petitioners, 10 workers’ unions, and 111 individuals.
Zainal revealed that the history of the perppu can be viewed from the thoughts of one of the nation’s founders, Soepomo, in 1942. His thoughts are contained in Article 22 paragraph (1) of the 1945 Constitution which reads, “In compelling crisis situations, the President shall have the right to issue government regulations in lieu of laws.” Furthermore, to follow up on this, based on Article 22 paragraph (2) of the 1945 Constitution, “Such government regulations have to be approved by the House of Representatives in its next session.”
Based on those norms, Zainal said, a perppu must be heard during the next session. So, in essence, the Job Creation Perppu, which was then stipulated into the Job Creation Law, is in violation [of that] because it should be processed in a compelling crisis situation. However, what happened was that the House and the Government postponed the approval for the perppu, so there was in fact no urgency to discuss it immediately.
“Therefore, the constitutional disobedience of the legislatures relating when it comes to the Job Creation Law, with a simple comparison, [it is clear] there was not much difference between the former Job Creation Law, the new perppu, and the latest Law, especially substantively. As such, it is obvious how the constitutional obedience shifted so the mandatory public participation was disregarded,” Zainal explained before the panel chaired by Deputy Chief Justice Saldi Isra.
He continued by stating that public participation is essential and closely related to the sacredness of a law. This is because it is not only a question of legislation, but also the value in Article 1 paragraph (2) of the 1945 Constitution that “Sovereignty is in the hands of the people and shall be exercised according to the Constitution.” Thus, the mandatory public participation was shifted on the pretext of compelling crisis situation, which is unnecessary in the formation of this Job Creation Law.
Violating Constitutional Values
Zainal also mentioned that the Job Creation Law has violated constitutional values, meaning that not only does it not respect the written Constitution, but also the concept of the Constitution. The violation in the formation of the Job Creation Law is both formal, which is provided in the Constitution, and adjudicative. He said that by forming a perppu from a bill and revising it as the Constitutional Court had ordered, the Government and the House have actually made a mockery of the Constitution and said Constitutional Court decision. “In short, let the Constitutional Court prescribe the constitutionality that it envisions, while the Government and the House [does the same],” Zainal said.
He also gave his view on the constitutionality of the Job Creation Law born from a perppu and not from an ordinary law, so that if a formal review is carried out, it must be done on the perppu. In addition, he said, the perppu that was made into the Job Creation Law did not talk about the compelling crisis that compelled the president and necessitated a shift from the concept of constitutional law to emergency constitutional law.
“If there [is an argument that] there was not enough time, [factually] the Constitutional Court gave a two-year window. The Government and the House wasted 13 months and shifted it by passing a perppu. This case of compelling crisis of the law being formally challenged was not born from an ordinary context, but an extraordinary one,” Zainal stressed.
Autocratic Legalism
In her expert statement for the Petitioners of case No. 40/PUU-XXI/2023, Lecturer of Jentera School of Law Bivitri Susanti said the phenomenon of “autocratic legalism” had occurred in the process of ratifying the latest Job Creation Law in this case as it indicates that government power seems to have been designed so that it cannot be controlled, given that it disregarded and even actively disabled the control functions of other institutions, including the judiciary. This phenomenon, she asserted, needs to be studied as a fundamental problem because the existing uncontrolled power is legally exercised due to a legalistic perspective. Therefore, it constitutes constitutional defiance by the Government and the House, she emphasized.
She explained that such defiance of the Constitution can be illustrated in two aspects: legal actions that show the Government’s bad faith in implementing Constitutional Court Decision No. 91/PUU-XVIII/2020 and the misuse of the perppu through legislative practices. The Government’s bad faith or legal politics, she argued, can be observed from the legal action of continuing to apply Law No. 11 of 2020 after November 25, 2023.
“In the end, this intention seemed to have been confirmed by the issuance of Perppu No. 2 of 2022. It didn't even stop there, as the defiance continued with the discussion, ratification, and promulgation of Perppu No. 2 of 2022 into Law No. 6 of 2023, even though there was already clear violation of Article 22 paragraph (3) of the 1945 Constitution,” Bivitri explained.
Impacts on Workers’ Rights
Next, Timbul Siregar, secretary-general of the Organisasi Pekerja Seluruh Indonesia (OPSI), an all-Indonesian workers' organization, also testified for the Petitioners of case No. 40/PUU-XXI/2023. He recounted that the Job Creation Law and Constitutional Court Decision No. 91/PUU-XVIII/2020 had impacted him as a workers’ advocate. In a legal case in Sukabumi, Government Regulation No. 36 of 2021 on Wages was ruled to be valid. In the regulation, the Governor of West Java stipulates that the minimum wage in 2021-2022 would not increase. This, said Timbul, created unrest among workers. In addition, the Law is also related to provisions on the mechanism of termination of employment (PHK), which could be resolved by mediation but workers cannot fight further for their rights.
“And as a workers’ organization, we have actually made efforts along with the Government to make improvements on this Government Regulation, which is based on the provisions of the Job Creation Law. However, when our organization asked the Government to carry out those improvements, they did not. This is regrettable,” Timbul said in the plenary courtroom.
Also read:
Hundreds of Workers Allege Job Creation Law Facilitates Layoff
Hundreds of Workers Affirm Arguments for Case on Job Creation Law
Court Separates Formal Review, Delays Material Review of Job Creation Law
House: Job Creation Law to Maintain National Economy’s Stability
The hearing was held for four cases: No. 40/PUU-XXI/2023; 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.
The petitioners of 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.
Also read:
KSBSI Challenges Stipulation of Job Creation Law
KSBSI Affirms Background of Petition against Job Creation Law
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.
Also read:
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.
Also read:
Labor Party Asks Court to Annul Job Creation Law
Labor Party Adds Evidence for Formal Petition of Job Creation Law
Govt: Formulation of Job Creation Law Following Legislation
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 : Lulu Anjarsari P.
PR : M. Halim
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.
Wednesday, July 26, 2023 | 16:17 WIB 273