Constitutional Justice Enny Nurbaningsih chairing the preliminary hearing for the material judicial review of the Manpower Law and the Human Rights Law, Tuesday (9/24/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — Leonardo Olefins Hamonangan has filed another judicial review petition of Law No. 13 of 2003 on Manpower. He also challenges Law No. 39 of 1999 on Human Rights. He filed the case No. 124/PUU-XXII/2024 alongside Max Andrew Ohandi and Martin Maurer, highlighting provisions that discriminate applicants based on age, sex, religion, and other parameters.

They question the phrase “may recruit by themselves the workforce they need” in Article 35 paragraph (1) of the Manpower Law. They also challenge Article 1 point 3 of the Human Rights Law.

“Article 35 paragraph (1) of Law No. 13 of 2003 on Manpower proves that the phrase’s constitutionality issue as it expressis verbis can be categorized as an unclear norm, thus leads to legal uncertainty. In addition, there must be an emphasis on what kind of discrimination cannot be tolerated in vacancies or recruitment,” said legal counsel Syamsul Jahidin at the preliminary hearing on Tuesday, September 24, 2024 in the plenary courtroom.

The Petitioners believe it may lead to abuse of authority or recruitment that do not meet standards. In some cases, it may even lead to violations of workers’ rights or disharmony in work relations. It may also lead to discrimination in the recruitment process.

There is no guarantee that the recruited workforce will be selected based on qualifications or merit. It could lead to widespread social impacts because there are often unreasonable requirements that result in many job seekers having difficulty getting a job.

The Petitioners say that the Manpower Law does not regulate equality in the recruitment process, which can lead to discrimination against certain groups based on factors such as age, gender, or regional origin. Injustice in the recruitment process can undermine public confidence in the company and contradict the principle of non-discrimination, which is widely recognized in Manpower Law.

Meanwhile, Article 5 of the Manpower Law states that every worker has the same opportunity to obtain employment without discrimination. However, it does not concretely protect job seekers against discrimination in vacancies because it only contains an appeal but no strict affirmation of the prohibition against discrimination.

In addition, the Petitioners argued that Article 1 point 3 of the Human Rights Law does not state that age restriction is a form of discrimination, whereas several countries have included ageism as a form of discrimination that is prohibited. In addition, the article does not view job vacancy requirements such as good looks as a form of discrimination. The Petitioners asserted that according to the Indonesian Language Dictionary (KBBI), discriminatory means to treat things differently. 

Petitums

In one of its petitums, the Petitioners requested that the Court declare Article 35 paragraph (1) of the Manpower Law unconstitutional and not legally binding if not interpreted as, “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies. They shall be prohibited from posting job vacancies that requires certain age, good looks, race, skin color, sex, religion, political views, nationality or origin of ancestry, unless otherwise provided by laws and regulations.”

They also requested that the Court declare Article 1 point 3 of the Human Rights Law unconstitutional and not legally binding if not interpreted as, “Discrimination  means  all  limitations,  affronts,  or  ostracism,  both  direct  and indirect, on grounds of differences in age, religion, ethnicity, race, group, faction, social status,  economic  status,  sex,  language,  or  political  belief,  that  results  in  the degradation, aberration, or eradication of recognition, execution, or application of human rights and basic freedoms, of both individuals and collective, in political, economic, legal, social, cultural, or any other aspects of life.”

Justices’ Advice

Constitutional Justices Enny Nurbaningsih, Daniel Yusmic P. Foekh, and M. Guntur Hamzah made up the hearing panel. They highlighted the Petitioners’ legal standing.

Justice Enny said the Petitioners already have a job but question vacancy requirements. She questioned their constitutional impairment and their argument on the connection between the enforcement of the a quo norms and the touchstones.

“[You] have had a job, be it a private employee, an entrepreneur, why are [you] questioning [this issue], especially discrimination. Please explain your argument,” she said.

She also questioned their argument on the Court’s opinion in a previous case where it declares age restriction not a form of discrimination. She stressed that the International Covenant on Civil and Political Rights does not mention age as a form of discrimination. In its decision, the Court emphasized that while discrimination indicates different treatments, not all different treatments is undoubtedly discriminatory. She advised the Petitioners to build an argument that could change the Court’s stance.

Hamonangan has previously filed a judicial review petition of the Manpower Law on age limit as a form of discrimination, which the Court has turned down in Decision No. 35/PUU-XXII/2024, with a dissent by Justice M. Guntur Hamzah.

Author            : Mimi Kartika
Editor             : N. Rosi
PR                 : Raisa Ayuditha Marsaulina
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.

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