I Gde Pantja Astawa, Raden Pardede, and Satya Arinanto (left to right) taking oath before testifying as House’s experts at the formal judicial review hearing of the Job Creation Law, Thursday (9/7/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Government Regulation in Lieu of Law (Perppu) No. 2 of 2022 on Job Creation is the president’s discretion, said I Gde Pantja Astawa, a law professor at Padjajaran University (Bandung), as an expert for the House of Representatives (DPR) at a formal judicial review hearing for case No. 54/PUU-XXI/2023. The eighth hearing for the case filed by fifteen workers’ unions took place on Thursday, September 7, 2023 in the plenary courtroom, chaired by Chief Justice Anwar Usman.
In his testimony, Astawa said ‘compelling crisis situation’ is an abnormal situation that compelled the president to issue a perppu. The special authority stipulated in Article 22 of the 1945 Constitution came from the authority to take initiative, in this case to issue a perppu.
“So, in interpreting a ‘compelling crisis situation’ or an abnormal situation that bases the president to issue a perppu, it must be left to the president’s freedom to give considerations or to consider, choose, assess, surmise, and predict issues that can be categorized as a ‘compelling crisis situation’ or an abnormal situation. Based on that notion, it is appropriate and justified that the President gave considerations as stipulated in the considerations for Perppu No. 2 of 2022 on Job Creation. As such, the perppu is a real manifestation or example of the president’s—a state administrator—discretion,” he explained.
Period Not Determined
Astawa observed that the provisions in Article 22 of the 1945 Constitution cannot be interpreted that the House is passive or merely acts as a rubber stamp, since it can either reject or approve a perppu with reasons included in the issuance of the norm. In line with this, ‘at the next hearing’ is interpreted that for the formation of a law there is no fixed period of when and how long a perppu should be proposed during House sessions.
Astawa believes the Elucidation to Article 52 of Law No. 12 of 2011 is not a norm that legally binds, unlike those in the body of the law. This is similar to the phrase ‘as soon as possible’ in terms of proposing a perppu during a House session.
“Therefore, in order to resolve the dispute between the Petitioners and the House in interpreting the phrase ‘at the next hearing,’ it should be left entirely to the Constitutional Court as the sole interpreter of the Constitution,” he said.
Emergency Constitutional Law
The next expert presented by the House, chairman of the board of professors of the Law Faculty of Universitas Indonesia Satya Arinanto offered his opinion on the state’s preparedness in the face of crisis to stipulate a legislation to legitimize constitutional law. The authority in a state of emergency allows the Government to temporarily delay the citizens’ rights during the emergency period. In addition, there is an arrangement in the Constitution that allows a checks-and-balances approach that would not normally apply in normal conditions.
Therefore, he said, the phrase ‘compelling crisis situation’ as affirmed in Article 22 of the 1945 Constitution does not always have to be interpreted as a ‘compelling crisis situation’ in the political sense, but it can also be interpreted in the economical sense, as what drove the issuance of the Job Creation Perppu on December 30, 2022.
“As such, the stipulation of the Job Creation Perppu has met the element of ‘compelling crisis situation’ as there was a threat of global recession, which was predicted to happen. In addition, there was stagnation and uncertainty after the Constitutional Court decision that ruled Law No. 11 of 2020 on Job Creation Law conditionally unconstitutional. This had to be resolved in order to prevent negative impact on national economy,” said Satya, who appeared before the Court on site.
House’s Witnesses’ Testimonies
Next, senior economist Raden Pardede testified about fulfilling an invitation to a public hearing meeting (RDPU) organized by the House’s Legislative Body to discuss the bill of Perppu No. 2 of 2022. The meeting, he recounted, took place on February 14, 2023 at a meeting room of the House’s Legislative Body in Nusantara I building in Jakarta. During the meeting, he explained the need to promulgate the Job Creation Perppu into law because the compelling crisis situation in global economy and the global geopolitics at the time required the state’s effort to prevent a national crisis.
“From my observation, all speakers invited agreed and completed each other’s research and study results [to come to the conclusion] that there was an urgency to promulgate the Job Creation Perppu for the sake of state economy. This was to avoid and mitigate crisis due to global economic turmoil. The promulgation of the law should be followed by supporting regulations in the form of government regulation (PP) or presidential regulation (perpres) so that the implementation of the Job Creation Law can run effectively,” he explained.
Meanwhile, Dzulfian Syafrian, economic researcher at the Institute for Development of Economics and Finance, recounted his experience attending one of such meetings organized by the House’s Legislative Body. During the meeting, he explained his thoughts on the UMKM (MSME) cluster in the bill. He believes the cluster was an important, smart breakthrough by the Job Creation Law in answering questions on MSME structural issues, i.e. the challenge of business licenses.
Also read:
Ratified During Recess, Job Creation Law Challenged Formally
House, President Explain Formation of Job Creation Law
Economist: No Compelling Economic Crisis That Warranted Job Creation Law
Petitioners’ Expert: Govt Did Not Fix Procedure to Amend Job Creation Law
Formation of Job Creation Law to Economists
Govt’s Witnesses Explain Involvement in Job Creation Law’s Drafting
At the preliminary hearing on Wednesday, May 31, the Petitioners argued that the formation of the Job Creation Law must have complied with the Lawmaking Law. They believe that the Job Creation Law is formally flawed because it—formerly the Job Creation Perppu—was ratified during a recess. They found a legal fact that the perppu, which was the precursor to the Job Creation Law, was stipulated on December 30, 2022—during the recess period of the House of Representatives (DPR). This, they claim, is a real violation of Article 22 of the 1945 Constitution and Article 52 paragraph (1) of the Lawmaking Law.
In addition, in their petition, the Petitioners explained that fear of the impact of global economic crisis on Indonesia’s economy did not justify any claim that there had been a compelling crisis situation that required the issuance of a perppu. They also asserted that there had been no legal vacuum to address since the existing Law was still able to address legal issues in society. Lastly, the regulation was a form of contempt of the Constitutional Court and was a bad precedent on the part of the President that set an example of disobedience. More dangerously, not implementing the Constitutional Court’s decisions constitutes a violation of the Constitution, as it is a constitutional organ whose existence and functions are regulated in the 1945 Constitution. Such a violation is one form of “treason against the state” that allows for an impeachment. Therefore, the Petitioners request that the Court grant the petition.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
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, September 07, 2023 | 16:10 WIB 206