Petitioners’ Expert: Job Creation Law Unqualified for Omnibus Method

Jamaludin Ghafur from the Islamic University of Indonesia testifying as an expert for the Labor Party’s case on the Job Creation Law, Monday (8/7/2023). Photo by Humas MK/Bayu.

JAKARTA (MKRI) — Article 42A of Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking reads, “The use of the omnibus method in the preparation of a bill of law shall be stipulated in a planning document.” So this norm has clearly regulated the use of the omnibus method in legislation drafting and that the method “shall” be contained in a planning document. This law joins the planning and enactment process.

The statement was made by Jamaludin Ghafur from the Islamic University of Indonesia as an expert for the Labor Party (for case No. 50/PUU-XXI/2023) at a hearing in the Constitutional Court (MK) on Monday, August 7, 2023. The eighth 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 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. This eighth hearing had been scheduled to hear the Petitioners’ expert.

Jamaludin further said the method contains the word “shall,” meaning that the drafted piece of legislation must be contained in a planning document, which is one of the requirement for the omnibus method in lawmaking.

“Without this stipulation, a law that is being drafted is not legitimate, as it does not meet this requirement. Therefore, a piece of legislation can only be drafted as long as it undergoes a planning process. For a perppu or legislation at that level, this is not possible because there is no planning procedure behind it. Therefore, this Job Creation Perppu clearly did not qualify as a legal form of regulation that can be drafted using the omnibus method. Thus, there is clearly a mistake in the lawmaking method,” he explained.

Legally Flawed

Jamaludin then explained the formal flaw in the House’s approval of the Job Creation Law. He believes the President’s authority in creating a perppu has been constitutionally set forth in Article 22 of the 1945 Constitution, in that in a compelling crisis situation the President has the right to stipulate a government regulation in lieu of law, which must receive the House’s approval at a following session. He added that such a provision also exists in Article 52 of Law No. 12 of 2011 on Lawmaking. The emphasis in this article is on the House’s approval in the next session and not during the submission of the draft perppu by the president. Therefore, the President’s proposal of the perppu in the next session is a logical consequence of the Constitution.

“This means the validity of the stipulation of perppu into law was not complete only by the President submitting the draft because [it was not discussed in] the next session period and the House had not given approval. The perppu draft was submitted on December 30, 2022 while the closest session schedule afterwards was on January 10, 2023-February 16, 2023, but this session period was only carried out for discussion and observation. The House only gave approval in a session on Tuesday, March 21, 2023. Therefore, the point is that the House’s action of not giving approval in time is an unconstitutional action that has implications of the invalidity of the perppu’s stipulation into a law,” Jamaludin emphasized.

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 

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

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.

Monday, August 07, 2023 | 18:48 WIB 257