Aan Eko Widiarto: Job Creation Perppu Defies Constitutional Court’s Ruling

Sri Palupi delivering her witness testimony in support of the Petitioners at the formal judicial review hearing of the Job Creation Law, Wednesday (8/2/2023). Photo by Humas MK/Ifa.

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 Wednesday, August 2, 2023. The hearing was for four cases: No. 40/PUU-XXI/2023, No. 41/PUU-XXI/2023, No. 46/PUU-XXI/2023, and No. 50/PUU-XXI/2023. The seventh hearing had been scheduled to hear the Petitioners’ expert and witness.

The Petitioners of case No. 46/PUU-XXI/2023 presented Aan Eko Widiarto as a constitutional law expert. He is the dean of the Law Faculty of Brawijaya University. Aan revealed that when the Job Creation Law was being drafted, Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking, which was promulgated on June 16, 2022, had been in effect. Its elucidation states that the arrangement and revisions in the Law are a follow-up to the Constitutional Court Decision No. 91/PUU-XVIII/2020 as well as revisions to several provisions of Law No. 12 of 2011.

Aan said this was meant as the follow-up on the Court’s decision on the omnibus law in order to remedy the technical mistakes after the joint approval of the House and the President and before the law was promulgated. It was also meant to improve meaningful public participation.

Therefore, he added, in terms of lawmaking techniques, the a quo Law, which is meant as the amendment to Law No. 11 of 2020, had followed the Constitutional Court Decision No. 91/PUU-XVIII/2020. “The Court in its verdict in Decision No. 91 of 2020 held that the formation of Law No. 11 of 2020 was unconstitutional and not legally binding conditionally if not interpreted that a revision was not done within two years since [the ruling] was pronounced,” Aan said before Chief Justice Anwar Usman and seven other constitutional justices.

Based on that decision, Aan explained, the Court had ordered lawmakers to revise Law No. 11 of 2020 by creating an amendment Law. “Perppu No. 2 of 2022 on Job Creation as the amendment, I believe, is not in line with the Court’s verdict that ordered the formation of a Law. A Law is formed by joint approval of the House and the president, while a perppu is formed by the president without the House’s approval. The formation of a perppu is different from that of a Law. The background is also different. If the House approves a perppu into a Law, it is a constitutional order that the House must do when it approves of the perppu. The stipulation of a perppu cannot be equated with a Law,” Aan explained.

He further explained that Law No. 11 of 2020 was not a Law stipulated from a perppu, so its amendment must concern a Law that is not stipulated from a perppu. In terms of substance, he said, Law No. 6 of 2023 is only meant to amend Law No. 11 of 2020. “I believe this is not in line with the Constitutional Court Decision No. 91 of 2020,” he added.

He also said that the Court Decision No. 91/PUU-XVIII/2020 mentioned that one of the issues with Law No. 11 of 2020 is that it violated the principle of transparency, where instead of issuing a Law to revise it, the president issued Perppu No. 2 of 2022 on Job Creation, which then was approved by the House and stipulated into Law.

Next, Sri Palupi, a witness for the Petitioners, said that she had read Decision No. 91/PUU-XVIII/2020 where the Court ruled the Job Creation Law conditionally unconstitutional. It gave the Government two years to revise the Law, after which it would be permanently unconstitutional.

In the decision, Sri explained, the Court also ordered the Government to suspend any strategic actions or policies that have far-reaching impacts and prohibited it from making new provisions. “From what I have seen, heard, and observed, I conclude that there are two things being proposed currently. The first is that the Government did not comply with the Constitutional Court’s decision by taking a strategic policy. Secondly, the implementation of the Job Creation Law has proven to have a serious negative impact on forestry, the environment, and on people’s lives,” she said.

Also read:

Hundreds of Workers Allege Job Creation Law Facilitates Layoff  

Hundreds of Workers Affirm Arguments for Case on Job Creation Law  

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.

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—Serikat Petani Indonesia (SPI), Yayasan Bina Desa Sadajiwa (Bina Desa), Federasi Serikat Pekerja Pertamina Bersatu (FSPPB), Serikat Petani Kelapa Sawit (SPKS), Perkumpulan Pemantau Sawit/Perkumpulan Sawit Watch, Indonesia Human Right Comitte For Social Justice (IHCS), Indonesia For Global Justice, Yayasan Daun Bendera Nusantara, Koalisi Rakyat untuk Kedaulatan Pangan (KRKP), Aliansi Organis Indonesia (AOI), Konsorsium Pembaruan Agraria (KPA), FIAN Indonesia, Perkumpulan Lembaga Kajian dan Pendidikan Hak Ekonomi Social Budaya, and Konfederasi Kongres Serikat Buruh Indonesia.

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 

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.  

Also read:

Court Separates Formal Review, Delays Material Review of Job Creation Law

Govt: Formulation of Job Creation Law Following Legislation

House: Job Creation Law to Maintain National Economy’s Stability

Petitioners’ Experts: Job Creation Law Not Urgent 

Author       : Utami Argawati
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.

Wednesday, August 02, 2023 | 16:49 WIB 275