“Destinata tantum pro factis non hebentur”. I quote a Latin adage to begin this article, meaning a good intention is not always followed by a good action.
Eddy OS Hiariej
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“Destinata tantum pro factis non hebentur”. I quote a Latin adage to begin this article, meaning a good intention is not always followed by a good action. This saying is appropriate to describe the existence of the Job Creation Law after being signed by President Joko Widodo on 2 November 2020 and promulgated in the Statute Book into Law No.11/ 2020.
It should be acknowledged that the presence of the law under review attests to the brilliant idea of the President to simplify diverse regulations for the equitable creation of vast job opportunities for Indonesian people by facilitating and protecting micro, small and medium enterprises and cooperatives, enhancing the investment ecosystem, providing business facilities, increasing workers’ protection and welfare as well as accelerating national strategic projects.
As indicated by the adage, the President’s good intention is not readily followed by a proper measure in the sense of the process of formation of, including the formulation of norms for the substance of, this law. It’s not simple to compile 79 sectorial laws into one. It demands great care and accuracy, including a comprehensive command of the subject matters regulated.
Therefore, public participation is needed, not only labor organizations but also different observers of the issues stipulated by the law. This is meant to make the law gain not only judicial power but also philosophical and sociological strength.
It means that the regulations are basically the administrative law provided with criminal sanctions.
On 11 March 2020, this daily published my article entitled “Sanctions in Job Creation Bill”. At the time I gave eight critical notes of the bill. After it was passed into law and my reexamination of the law, several significant problems are still left in the formulation of criminal sanctions. The essential matter to be understood is that a number of criminal provisions in the law under review constitute the administrative criminal law. It means that the regulations are basically the administrative law provided with criminal sanctions.
The nature and characteristics of the administrative criminal law are first, it is ultimum remidium. It means that the criminal law is the ultimate means if other legal instruments are not functional for law enforcement. Second, criminal sanctions are formulated to be liable as alternatives. Third, criminal sanctions are applied if other sanctions are not functional.
Three important notes
There are three important notes concerning the formulation of criminal sanctions in the law under review. First, provisions on administrative sanctions and criminal sanctions are overlapping and tend to be contradictory. On the one hand, it is clearly stipulated that any violation of the said provisions is subject to administrative sanctions, but criminal provisions definitely stipulate that any violation of the said provisions is liable to imprisonment and fines cumulatively.
Second, the impact of an action is not proportional to the crime charged. The greater the impact caused by an action, the crime alleged should be more severe. However, this is not the case with what is formulated in the law under review. Let’s see Article 70 on Spatial Designing. Article 70 Paragraph (1) the utilization of space that fails to comply with spatial planning shall be liable to imprisonment and fines. Paragraph (2) any criminal action as meant in Paragraph (1) that causes material loss or property damage shall be liable to imprisonment and fines.
Unfortunately, in Paragraph (3), if the criminal action as meant in Paragraph (1) causes death, it shall be liable to imprisonment or fines. Simple logic shows that materials and property are more valuable than human lives. The action causing death should be liable to the most severe sanction in cumulative form instead of alternative form.
Third, the law under review comprises approximately 79 laws each containing criminal provisions. When compiled into one law, there should be harmonization between these provisions instead of only referring to the existing articles of the various sectorial laws. This results in criminal disparity in law enforcement in the case of any violation of the law under review.
For example, an action causing death in the cluster of environmental laws is only subject to a maximum criminal sanction of one year in prison. The same impact in the cluster of fisheries laws is liable to a maximum criminal sanction of six years in prison. Even there’s the same provision stipulating only a maximum fine of Rp500 million for causing death.
This was dealt with by the expert team of the government and Commission III of the House of Representatives (DPR) at a discussion of the Criminal Code Bill when recodifying around 200 sectorial laws stipulating criminal sanctions.
In such a context, there should be harmonization and synchronization of criminal sanctions by the Modified Delphy System that applies seven parameters. This is meant to avoid criminal disparity in abstracto. Actions with the same consequences are liable to the same criminal sanctions. This was dealt with by the expert team of the government and Commission III of the House of Representatives (DPR) at a discussion of the Criminal Code Bill when recodifying around 200 sectorial laws stipulating criminal sanctions.
Vulnerable to MK review
Based on the three notes, the law under review is highly vulnerable to being taken to the Constitutional Court (MK) in connection with one of the constitutional state’s principles, which is justice, while the formulation of norms in force doesn’t reflect justice related to the violation impacts and criminal sanctions imposed.
There are two settlement alternatives. First, a legislative review of the existing criminal provisions is carried out. Second, the President issues a regulation in lieu of law (perppu), which does not cancel the entire law under review, but it suspends the enforcement of criminal provisions for a maximum of one year to allow harmonization and synchronization.
Improvements cannot be made with implementation rules in the form of government regulations as well as presidential regulations, because criminal sanctions can only be stipulated in laws or bylaws based on the principle of no punishment without representatives. It means that the formulation of criminal sanctions must obtain people’s agreement, which are laws approved by the DPR or bylaws approved by regional councils. Even if regulated in bylaws, the criminal sanctions allowed are limited to fines and detentions.
The plan for improving the law under review with what is termed Distribution II is a mechanism completely unknown in the doctrinal context and without legal references, let alone a convention. It should be understood that a convention must be based on postulat longa et invetarata consuetudo, opinio necessitates. It means something that lasts continuously within a long period of time, giving rise to the assumption that it is constitutionally binding.
Eddy OS Hiariej, Professor of Criminal Law, School of Law, Gadjah Mada University