Multiple Interpretations of Job Creation Law Ruling

Kompas/Wawan H Prabowo

Residents watch a virtual trial of judicial review of Law (UU) Number 11 of 2020 concerning Job Creation proposed by the Confederation of Indonesian Trade Unions (KSPI) at the Constitutional Court, Jakarta, Tuesday (11/24/2020).

Various interpretations of the validity of the Job Creation Law and its derivative rules have emerged following the ruling by the Constitutional Court. The decision declaring the Job Creation Law conditionally unconstitutional has also been described as steeped in ambiguity.

JAKARTA, KOMPAS — The decision of the Constitutional Court (MK) that the Job Creation Law is conditionally unconstitutional has sparked multiple interpretations of the the validity of the regulation and its derivate rules. Multiple different understandings have also arisen regarding the improvements sought by the MK. Some hold the view that a revision of the Law on the Formation of Legislation should be sufficient without touching on the substance of the Job Creation Law.

These different interpretations of the legality of Law No.11/2020 on job creation and its derivative rules have been made by experts on constitutional law.

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Former MK chairman Jimly Asshiddiqie when contacted on Friday (26/11/2021) judged that the Job Creation Law remained valid on the condition that it must be improved within two years. He referred to the adage, the presumption of legality, meaning that all legislation remains legitimate and binding and must be implemented until the authorized institution declares it invalid.

“So, [the Job Creation Law] will only be ineffective in two years. Before those two years, it remains valid. However, it has to be amended within the two-year period. Otherwise, uncertainty will arise,” he said.

Yet the approval of the government and the DPR constitutes the final endorsement of the substance of the bill.

According to Jimly, the problem with the Job Creation Law, based on the MK decision, concerns the process of its formation instead of its substance. Nonetheless, he drew attention to several matters given notes by the MK. One was that part of the substance in the Job Creation Law enacted is different from that already approved by the government and the House of Representatives (DPR). Yet the approval of the government and the DPR constitutes the final endorsement of the substance of the bill.

Ambiguity

Former deputy minister of law and human rights Denny Indrayana described the MK decision as being filled with ambiguity.

KOMPAS/RADITYA HELABUMI

Denny Indrayana

For instance, provision number 4 of the MK decision on the Job Creation Law stipulates that the law remains valid until a legislation formation improvement is made within two years. But provision number 7 imposes restrictions on the Job Creation Law’s validity on matters that are not strategic and have no extensive impact. In Denny’s view, the provision becomes questionable when matched with Article 4 of the Job Creation Law stipulating that the scope of the law governs strategic policies, which cover several areas.

“There’s ambiguity, on the one hand the Job Creation Law is still valid, leaving only strategic matters ineffective, yet Article 4 of the Job Creation Law’s scope covers strategic policies. The MK decision is contradictory,” said Denny.

Executive director of the Constitution Study Center (Pusako) at Andalas University, Padang, Feri Amsari, has even assessed that the Job Creation Law should not serve as the basis for any action or policy at all until its improvement. “If it is forced, the action or policy executed will be entirely annulled in the name of law, even receiving the likely consequence of being found a corruption crime if state financial losses are incurred and administrative flaws found, and civil lawsuits are imminent,” he said.

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Different interpretations also arose in business and labor circles. General chairman of the Indonesian Entrepreneurs Association (Apindo), Hariyadi Sukamdani, evaluated that the points raised in the MK’s ruling were about the process of formation of the Job Creation Law. Therefore, according to him, what should be improved is Law No.12/2011 on the formation of legislation rather than the Job Creation Law. He feared that if the Job Creation Law was revised, there might be uncertainty in the business and investment climate.

Kompas

Didie SW

Yet president of the Confederation of Indonesian Workers Unions, Said Iqbal, requested that the government improve the substance of the Job Creation Law. He believed the government should also suspend all rules and policies that were strategic and had a broad impact contained in the Job Creation Law as stipulated in the MK decision.

DPR response

A member of the DPR Legislation Body from the Golkar Party faction, Firman Soebagyo, said following the MK ruling, the DPR had been prepared to initiate a revision of the Legislation Formation Law. The revision would include omnibus laws as a new law formation norm, as applied with the Job Creation Law. “If the phrase ‘omnibus law’ is included, there is no more constitutional violation,” he added.

NINO CITRA ANUGRAHANTO UNTUK KOMPAS

Firman Soebagyo.

In doing so, according to Firdan, the substance of the Job Creation Law should not need to be amended. Still, he left the interpretation and decision to the government as the party who initially proposed the law.

Meanwhile, member of the DPR Legislation Body from the Prosperous Justice Party faction, Ledia Hanifa Amaliah, expressed the view that the Job Creation Law’s improvement remained important as it was mandated by the MK. This improvement should follow the revision of the Legislation Formation Law.

Coordinating Economic Minister Airlangga Hartarto at a press conference on Thursday (25/11) stated that the government would follow up the MK ruling by preparing for the improvement of the law. (ANA/AGE/REK/MTK)

(This article was translated by Aris Prawira).