Lessons from Formal Defect of Job Creation Law

KOMPAS/RADITYA HELABUMI

Workers from various elements held a demonstration while waiting for the verdict of the Constitutional Court's trial regarding the Job Creation Law in Jakarta, Thursday (11/25/2021).

The Constitutional Court (MK) ruled that the Job Creation Law was formally flawed and conditionally unconstitutional. The Constitutional Court ordered the procedure for the deliberation of the law to be corrected within a maximum of two years. This ruling was welcomed positively and at the same time drew criticism.

JAKARTA, KOMPAS — The ruling of the Constitutional Court, on Thursday (25/11/2021), which stated that the formation of Law No. 11/2020 concerning Job Creation was flawed formally, serves as a lesson for the government and the House of Representatives (DPR) not to ignore the stages and procedures in law deliberation. At the same time, it is necessary to immediately revise the Job Creation Law.

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In its ruling, the Constitutional Court (MK) assessed that the formation of the Job Creation Law was not in accordance with the rules for creating legislation, including not in accordance with the principle of clarity of the formulation and objectives, as well as the principle of openness, so that the law was declared invalid in terms of formal procedure. However, considering the magnitude of the objectives to be achieved through the law, and the many implementing regulations that have been issued and implemented, the Court declared the Job Creation Law to be unconstitutional albeit with condition.

The government is also not allowed to issue new implementing regulations related to the law.

The Constitutional Court then ordered the government and the House to improve the procedures for the formation of the Job Creation Law within a maximum of two years. During that time, the Constitutional Court also stated that all strategic and broad-impact actions or policies must be suspended. The government is also not allowed to issue new implementing regulations related to the law.

"If improvements are not made within the time limit, Law No. 11/2020 concerning job creation becomes permanently unconstitutional," said Constitutional Court chief justice Anwar Usman when reading the ruling of the judicial review of the Job Creation Law.

The Constitutional Court ordered the formation of a standard legal basis immediately to serve as guidelines for the deliberation of a law using the omnibus law method, which has this specific nature. Based on this legal basis, Law No. 11/2020 would be revised in order to fulfill definite and standard methods, as well as to fulfill the principles of the formation of laws as mandated by Law No. 12/2011 concerning the establishment of legislation.

Kompas/Wawan H Prabowo

The Constitutional Court (MK) held a preliminary hearing regarding the lawsuit for a virtual review of the Job Creation Law, Thursday (12/11/2020).

The Constitutional Court's ruling was marked by dissenting opinions from four constitutional judges, namely Arief Hidayat, Anwar Usman, Daniel P. Yusmic Foekh and Manahan P. Sitompul.

Deputy House Speaker Sufmi Dasco Ahmad said the Constitutional Court's ruling would be followed up according to the mechanism in the House.

Separately, Coordinating Economic Minister Airlangga Hartarto said the government respected and complied with the Constitutional Court's decision. "The government will immediately follow up on the Constitutional Court's decision in question through the preparation of revisions to the law and carry out as well as possible the directions of the Constitutional Court," he said.

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He also conveyed that the regulations that had been enacted to implement the Job Creation Law remained in effect.

The chairperson of the Indonesian Employers' Association, Hariyadi Sukamdani, also interpreted that all derivative regulations and government policies based on the Job Creation Law that had already been issued were still effective.

KOMPAS/WAWAN H PRABOWO

Chairperson of the Indonesian Employers' Association, Hariyadi Sukamdani.

On the other hand, Said Salahuddin, a legal advocate for the petitioner for the formal review of the Job Creation Law from the Indonesian Metal Workers Federation, stated that the Constitutional Court's ruling meant that all policies that referred to the Job Creation Law were invalid because the legal umbrella was declared to be formally disabled.

Lesson

The Constitutional Court's decision was met with mixed reviews. On one hand, the ruling is considered to provide legal certainty. On the other hand, the decision is considered ambiguous because it does not invalidate the Job Creation Law, which is formally flawed.

“This decision means that the House and the government will have to be careful in making laws. Do not ignore the stages and procedures for the formation of laws that have occurred in various practices, for example the Job Creation Law, the Corruption Eradication Commission Law and the Mineral and Coal Mining Law," said Feri Amsari, director of the Center for Constitutional Studies, Andalas University, Padang.

According to Feri, the Constitutional Court's decision is a sign of victory for the public who have been criticizing the Job Creation Law. However, the decision, he continued, also put a big question mark over why the Constitutional Court still allowed this unconstitutional law to remain in operation for two years.

A legal vacuum is impossible because the Constitutional Court can enforce the old regulations.

“If it [the law] is deemed to have violated the provisions of the Constitution and Law No. 12/2011, why not cancel it from now on so that the legislators can correct it. A legal vacuum is impossible because the Constitutional Court can enforce the old regulations," he said.

A researcher with the Initiative Democracy Constitution, Violla Reininda, reminded the government, the House and Regional Representatives Council (DPD) to review the substance of the Job Creation Law by considering and accommodating the substance of the Job Creation Law which was subject to a material review at the Constitutional Court. She also encouraged the government and the House not only to add the omnibus law method to the law on the formation of legislation, but also to implement the principles of the formation of good laws and regulations.

Kompas

Didie SW

Director of the Center of Economic and Law Studies, Bhima Yudhistira, said that if the legal umbrella were to be revised, the derivative rules also needed to be changed. This situation, according to him, will delay investment and confirm Indonesia's status as a country with high policy uncertainty. (ANA/INA/REK/DIM/ AGE/GIO/AIK)

(This article was translated by Kurniawan Siswoko).