Formal Petitions Rejected, Material Review of Job Creation Law Continues

Chief Justice Anwar Usman at the ruling hearing of Law No. 6 of 2023 on Job Creation, Monday (10/2/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — Five formal judicial review petitions 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 were rejected in their entirety by the Constitutional Court (MK). They are cases No. 54/PUU-XXI/2023, 40/PUU-XXI/2023, 41/PUU-XXI/2023, 46/PUU-XXI/2023, and 50/PUU-XXI/2023.

In its legal opinion on case No. 54/PUU-XXI/2023, filed by 15 workers’ unions and federations, delivered by Constitutional Justice M. Guntur Hamzah, the Court stated that the Petitioners had argued that Perppu No. 2 of 2022, which produced the Job Creation Law, had been enacted by the President by violating the Constitutional Court’s stance on meaningful participation in Decision No. 91/PUU-XVIII/2020. The Court held that based on the legal framework for the formation of laws originating from perppu, a perppu that has been enacted by the president must obtain the House of Representatives’ (DPR) approval in order to remain enforceable as a law.

“The President proposed the perppu by to the House in the form of a bill. However, a bill on the stipulation of a perppu into law has different characteristics from those of an ordinary bill, such as the stages and deadline,” Justice Guntur stated.

The special characteristics mean that not all lawmaking principles as regulated in Article 5 of Law No. 12 of 2011 absolutely bind the bill. For example, he added, the Elucidation to Article 5 of Law No. 12 of 2011 stipulates that the lawmaking stages of planning, drafting, discussion, ratification, and promulgation be transparent and open.

“So, all elements of society have the widest opportunity to provide inputs in lawmaking while, as previously explained, the lawmaking mechanism of [laws] originating from a perppu do not [necessarily] go through all the aforementioned stages,” he added.

Not to mention, the compelling urgency that necessitates a perppu means that laws originating from a perppu has time restriction. As such, based on logical reasoning, there must be their enactment should differ from ordinary laws, including in the implementation of the principle of meaningful participation.

“Therefore, it is no longer relevant for the ratification of a bill on the stipulation of a perppu into a law in the House to implement extensive meaningful participation due to a compelling crisis situation, thus the House’s approval serves the supervision function as the representation of the people’s will. Nevertheless, despite the discussion of a bill on the stipulation of a perppu into a law not involving meaningful public participation, the House is obligated to inform the public so that the public can access and provide inputs, such as through information system application on the House’s official website,” Justice Guntur explained.

Also read:

Hundreds of Workers Allege Job Creation Law Facilitates Layoff  

Hundreds of Workers Affirm Arguments for Case on Job Creation Law  

KSBSI Challenges Stipulation of Job Creation Law

KSBSI Affirms Background of Petition against Job Creation Law

Formation of Job Creation Law Questioned Again

Legal Entities Clarify Background of Petition against Job Creation Law

Labor Party Asks Court to Annul Job Creation Law 

Labor Party Adds Evidence for Formal Petition of Job Creation Law

Meaningful Participation Irrelevant

Justice Guntur explained that the Court believed that meaningful participation as mentioned in the Court Decision No. 91/PUU-XVIII/2020, which was put into Article 96 of Law No. 13 of 2022, was meant to create real participation and involvement of the public in every stages of lawmaking.

In such a context, lawmakers have the obligation to listen to, consider, and provide explanation to all stakeholders, especially those impacted and those who have real stake in the perppu. Therefore, in the lawmaking process of an ordinary law, meaningful participation is mandatory in all stages, especially in the proposal, discussion, and ratification stages.

“However, in the ratification of a bill originating from a perppu, meaningful participation is no longer relevant. Therefore, the Court holds the Petitioners’ argument that Perppu No. 2 of 2022 which started the Job Creation Law was stipulated by the President by violating the [principle of] meaningful participation in Decision No. 91/PUU-XVIII/2020 was legally groundless,” Justice Guntur stressed.

Not Ordinary Procedure

In response to the argument made by the Petitioner of case No. 50/PUU-XXI/2023—the Labor Party—that the stipulation of the Job Creation Law was not in line with Article 42A of Law No. 13 of 2022 since it was not regulated in the planning document despite being an omnibus law, the Court held that the Job Creation Law was not created with an ordinary procedure. This is because it originated from a bill on the stipulation of a perppu into law. Thus, the background of its creation cannot be separated from that of Peppu No. 2 of 2022, which it promulgates. Aligning with the considerations for case No. 54/PUU-XXI/2023, it was concluded that the House was in the view that Perppu No. 2 of 2022, which became the Job Creation Law, had met requirements including that of a compelling crisis situation.

“In other words, the House had made an assessment on the fulfillment of the requirements, so the Petitioner’s assumption that the formation of the a quo Law did not meet the criteria of a compelling crisis situation was legally groundless,” said Constitutional Justice Arief Hidayat delivering the Court’s legal opinion on the petition.

Based on those legal considerations, the Court held that the formation process of the Job Creation was formally constitutional. As such, it remains legally binding and the Petitioner’s entire arguments were declared legally groundless.

Dissenting Opinions

Nevertheless, four out of the nine constitutional justices had dissenting opinions. Three of them—Constitutional Justices Wahiduddin Adams, Saldi Isra, and Enny Nurbaningsih—believed the petitions should have been granted. Meanwhile, Constitutional Justice Suhartoyo stated that the Court should have declared the petitions premature and before handing down a final decision it should issue a provisional decision to order lawmakers to follow the Court’s verdict in Decision No. 91/PUU-XVIII/2020.

In his dissent, Constitutional Justice Wahiduddin Adams stated the Job Creation Perppu had been ratified by the House after the deadline (“next session”) set forth in Article 22 paragraph (2) of the 1945 Constitution, so the formation of the a quo Law did not have a constitutional basis. This must be followed in the future to prevent political maneuvers by the President and the House collaboratively or by the President imposed on the House and vice versa in the context of a follow-up of the stipulation of a perppu into law.

Meanwhile, Deputy Chief Justice Saldi Isra and Constitutional Justice Enny Nurbaningsih stated that the court proceedings had revealed that lawmakers had planned on forming the Job Creation Law as they had included as number 209 in the 2020-2024 Prolegnas (national legislative program) based on the House’s decree on December 7, 2021. The bill was proposed by the Government. The President had prepared a Job Creation Bill and opened public consultation for the sake of meaningful public participation. However, he stipulated a perppu instead. The lawmakers’ move was clearly not following up on the Constitutional Court Decision No. 91/PUU-XVIII/2020. If the perppu’s issuance had been accepted as a follow-up on the a quo decision, this could be a bad precedent and allowed more perppus to be issued following Constitutional Court decisions merely to accelerate the formation and revision of laws without the House’s involvement.

Both justices also stressed that lawmakers did not follow up on said decision to revise a law or a lawmaking procedure, such as revising Law No. 11 of 2020. They could have considered the formation of the perppu as a solution if the formation of the law as referred to in Decision No. 91/PUU-XVIII/2020 had been pursued in such a way until the prescribed deadline (at most two years) was approaching. However, since it was not the case and the President instead formed a different legal product, in casu a perppu, despite the ample time, the Court should have granted the Petitioners’ petitions, Justices Saldi and Enny concluded.

Lastly, Constitutional Justice Suhartoyo argued that the Court almost always dismissed a formal judicial review petition because it lost its object, given that the House has approved the perppu. Therefore, in his legal opinion, he stated that for the sake of legal certainty and justice, formal review of perppu should be promoted after it receives the House’s approval and be enacted as a law. As such, formal review of perppu can be done along with the formal review of the law. This, in his opinion, is also because so far the Court’s formal review proceedings had merely been a way of giving justice seekers hope (justiciabelen) without accommodating the formal review of the perppu’s constitutionality.

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 

Petitioners’ Expert: Job Creation Law Unqualified for Omnibus Method

Revision of Job Creation Law Serves to Follow Up on Court’s Ruling

Material Review Continues

The Court issued a provisional decision so that the material judicial review of case No. 40/PUU-XXI/2023, filed by 121 petitioners comprising 10 workers’ unions and 111 workers, continue. In its legal opinion, read out by Constitutional Justice Daniel Yusmic P. Foekh, the Court stated that the Petitioners had combined the formal and material judicial review petition.

“Meanwhile, the Court had issued a decree that in essence separated the formal and material review and postponed the material review as referred to in Decrees No. 40/PUU-XXI/2023, 39/PUU-XXI/2023, and 49/PUU-XXI/2023 on the separation of the formal and material review and the postponement of the examination of the material judicial review petition. Therefore, because the formal review in the a quo petition was legally groundless, the material review will continue immediately,” Justice Foekh added.

At this ruling hearing, the Court also rejected the petitions No. 41/PUU-XXI/2023 by the Confederation of All Indonesian Labor Unions (KSBSI) and No. 46/PUU-XXI/2023 by 14 workers’ unions and federations.

Author       : Utami Argawati/LAP
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.

Monday, October 02, 2023 | 18:24 WIB 160