The government plans to entrust the Constitutional Court (MK) with solving some textual errors in Law No. 11/2020 concerning job creation.
By
RINI KUSTIASIH/DIAN DEWI PURNAMASARI/PRAYOGI DWI SULISTYO
·4 minutes read
JAKARTA, KOMPAS — The government plans to entrust the Constitutional Court (MK) with solving some textual errors in Law No. 11/2020 concerning job creation. The government will also entrust the MK with solving substantial errors, if there are any, which is deemed inappropriate.
However, the MK is unable to immediately correct errors in the Job Creation Law. Some organization or individual should submit a request for a judicial review before the MK can solve textual or substantial errors.
According to Coordinating Political, Legal and Security Affairs Minister Mahfud MD, correcting textual errors in the law after it was signed by the President necessitates talks between the government and the House of Representatives (DPR). Then the issue will be handed over to the Constitutional Court to be decided.
"Those clerical [textual errors] will be resolved. We will also discuss with the House why the document contains errors. Which one is the correct document? We will then let the Constitutional Court decide," he said on Thursday (5/11/2020).
Textual errors in the Job Creation Law were found in Article 6 in Chapter III and Article 175 in Chapter IX, and in Article 53 Paragraph 5 (Kompas, 4/11/2020).
Apart from the clerical errors, the government will also entrust the Constitutional Court with solving any substantial errors in the law that contradict the Constitution. Should the Constitutional Court rule that there are substantial errors, there would most possibly be revisions in accordance with prevailing regulation. "The Job Creation Law has a good purpose. Anything with a good purpose is certainly open to improvement,” Mahfud said.
Meanwhile, as the deputy chairman of the House Legislation Body (Baleg), Willy Aditya of the NasDem Party, said during a meeting between the government and the House led by Mahfud MD, there was a proposal to use the Distribution II scheme to correct the errors in the Job Creation Law.
"It seems we will take that scheme, using the Distribution II," he said.
Need for testing
Regarding the government\'s plan to leave the textual errors in the Job Creation Law for the Constitutional Court to resolve, a constitutional law expert from Andalas University, Khairul Fahmi, said it would be impossible for the Constitutional Court to correct the textual errors in the law if no one requested a judicial review.
State institutions, according to him, are allowed to submit a request for judicial review to the Constitutional Court. However, the institution filing the request must claim disadvantages as a result of the implementation of the law. Given this situation, he is not sure that the Constitutional Court will accept the request by the government or the House, given that neither of those institutions are among those that are constitutionally disadvantaged.
In other words, it takes other parties outside the government and the House who are constitutionally disadvantaged by erroneous articles in the law.
The dean of the School of Law of Gadjah Mada University in Yogyakarta, Sigit Riyanto, added that corrections could be made with the government or the House proposing revisions. This is in line with the existing regulations on lawmaking procedures. "Laws that have been promulgated in the state gazette are final and binding. If there is a plan for improvement, there must be a proposal for a new law," he said.
Meanwhile, regarding the Distribution II scheme, constitutional law expert Bivitri Susanti from the Jentera School of Law said such a mechanism had no legal reference. This mechanism also cannot easily be called a state administrative convention.
"A state administrative convention must meet the constitutional principles. If it violates [constitutional principles], it does not become a convention. It is simply a wrong practice that is repeated over and over again,” she said.