The initiative to revise and amend 79 laws through the formation of the law, in a process known as an omnibus law, was a legal breakthrough which had never been made by the government before.
By
Kompas Editor
·3 minutes read
Kompas/Wawan H Prabowo
The Constitutional Court (MK) held a preliminary examination hearing regarding the lawsuit for a virtual review of the Job Creation Law, Thursday (12/11/2020).
The Constitutional Court has made history. Although not a unanimous decision, it declared that Law Number 11 of 2020 concerning job creation was formally flawed.
Of the nine constitutional judges, four judges held a dissenting opinion. The Constitutional Court also ordered the government and the House of Representatives (DPR) to improve the procedures for the formation of the law within two years. If the change is not made, the Job Creation Law will be unconstitutional. As it is not in line with the 1945 Constitution, the law is null and void.
Since the beginning of its deliberation at the DPR a year ago, the Job Creation Law has met with widespread opposition in the community. The judicial review of the Job Creation Law by the Constitutional Court also showed the sharp differences of opinion in the community. The constitutional step of testing the law at the Constitutional Court is the best option to quieten these differences.
The initiative to revise and amend 79 laws through the formation of the law, in a process known as an omnibus law, was a legal breakthrough which had never been made by the government before. Such a method in the revision of laws had not been regulated in Law No. 12 of 2011 on Law Making as last amended by Law No. 15 of 2019.
Kompas/Priyombodo
Workers protesting to demand that Law Number 11 concerning Job Creation be canceled at the Arjuna Wiwaha Horse Statue roundabout, Central Jakarta, Wednesday (16/12/2020).
We understand the government's initiative to integrate various laws within a short period of time was intended to create legal certainty, so that the national economy, particularly in the investment sector, could grow rapidly. However, such rash actions have caused the government to ignore the formal requirements in law making.
With such considerations, the law was declared formally flawed.
In its decision, the Constitutional Court considered that the formation of the Job Creation Law was not in accordance with the rules of law making and the principles of clarity of formulation and objectives, as well as the principle of openness. With such considerations, the law was declared formally flawed.
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 conditionally unconstitutional. (Kompas, 26/ 11/2021) .
The Constitutional Court's decision is a "middle way" for the Job Creation Law. It does not have to be canceled, even though it is unconstitutional, and the court has given time to fix it. However, this decision has also caused confusion because laws that are not in line with the Constitution, both in terms of formality and substance (material), should be annulled. Lawmakers can make new laws, especially those that do not comply with the formal requirements, the basis in the law making.
Kompas
Didie SW
Indeed, the court’s decision on the Job Creation Law could be viewed as a legal discovery so that the legislators can improve themselves, without ignoring the formal requirements in law making. The aspirations of the parties who have opposed the Job Creation Law can be heard again. Dialogue between people's representatives, the government, workers, entrepreneurs or citizens who have aspirations towards the Job Creation Law is open again.
The Constitutional Court's decision provides a lesson that good intentions should not ignore procedures. Dialogue must continue to be built.
(This article was translated byHendarsyah Tarmizi).
