Constitutional Court Inconsistent, Job Creation Law Chaotic

Kompas

Didie SW

On Thursday, 25 Nov. 2021, the Constitutional Court read out 12 decisions related to the contentious constitutionality of Law No. 11/2020 on Job Creation.

Only one petition was partially granted. Eleven other petitions were rejected. One of these was deemed to have no legal standing, while the remaining 10 were deemed to have “lost their object”.

Also read:

> The Loss of Morality of Job Creation Law

> Don’t Ignore Formal Requirements

> Lessons from formal Defect of Job Creation law

The one that has caused the brouhaha and sparked debate was Decision No. 91/PUU-XVIII/2020 (Decision 91), which declared that the Job Creation Law was conditionally unconstitutional.

Appreciation

Decision 91 deserves appreciation because for the first time, the Constitutional Court granted a formal review of a law. This is in stark contrast to the previous petition hearings, in which the Constitutional Court granted none of the 69 formal petitions for review filed since 2003 prior to the reading of Decision 91.

In fact, many of our legislative processes are problematic, being passed either without meeting the attendance quorum or with minimal public involvement.

Decision 91 is a landmark decision, a reminder that the legislative process must receive serious attention and is as important as the substance of a law.

A legislative process that ignores the legal principles will result in a law that is contrary to the 1945 Constitution and has no binding force. Decision 91 also confirms that every draft law (RUU) must contain academic text.

The Constitutional Court assessed that the parameters of public participation must be truly meaningful (meaningful participation).

What has come as the greatest relief is that the Constitutional Court finally acknowledged the rife practice of manipulating public participation. The Constitutional Court assessed that the parameters of public participation must be truly meaningful (meaningful participation).

Therefore, activities that turn out to be mere formalities and ceremony should not be deemed as public participation. The Constitutional Court emphasized, “Truly meaningful public participation fulfills at least three prerequisites, namely the right to be heard, the right to be considered, the right to an explanation [or a reply to the opinion given].

Better late than never. If the Constitutional Court had impartially applied the principle of public participation, many constitutionally guaranteed public interests would have been saved.

Kompas/Wawan H Prabowo

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

If treated using the same standard, the formal review of the Corruption Eradication Commission (KPK) and the Mineral and Coal Law revisions, which had actually nullified public participation, would have annulled those law revisions for overlooking the sovereignty of the people to thereby contradict the basic principles of the Constitution and democracy. In the case of the two law revisions, the Constitutional Court’s failure to decide on an annulment appeared to offer reprieve for corrupt and oligarchical forces.

Chaotic

Appreciation aside, Decision 91 contains serious issues that are dangerous for the sustainability of legal norms as regards job creation.

Because of the court’s inconsistency, Decision 91 exposes the chaotic implementation of the Job Creation Law that has resulted in at least two serious problems.

Also read:

> Implementation of Job Creation Law

> Economics and Health Must Go Hand in Hand

> Job Creation Bill, Post-Approval

First, Decision 91 allows constitutional impunity for a maximum of two years for the entire substance of the Job Creation Law. The Constitutional Court argued that the Job Creation Law had changed in its substance with the issuance of Decision 91, so a judicial review of the law would be irrelevant because it had "lost its object".

This is of course inappropriate and very contentious, given that the fourth point in Decision 91 firmly states that the Job Creation Law remains in effect for at least two years, even though it declared the law unconstitutional at the same time.

How is it possible that a law that remains in force cannot be subject to legal contention over its constitutionality?

It would have then been appropriate to say that the object of the material test had been lost.

It would be a different story if the Constitutional Court's decision had stated that the Job Creation Law was contrary to the 1945 Constitution and consequently had no binding legal force following the decision’s issuance. It would have then been appropriate to say that the object of the material test had been lost.

With the Constitutional Court decision tolerating a maximum life span of two years for the Job Creation Law, but on the other hand stating that a judicial review could not be carried out because of a "loss of object", the Job Creation Law is the only legal ordinance of which the provisional substance cannot be subjected to a judicial review, even though it remains in effect.

Second, there is nothing strange about Decision 91’s “conditionally unconstitutional” statement. It does not mark precedence in Constitutional Court decisions.

KOMPAS/RADITYA HELABUMI

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

Declaring a law as “conditionally unconstitutional” and allowing it to temporarily remain in effect is indeed not a first for the Constitutional Court. It has given the KPK Law reivion trial a grace period of three years, even though Article 53 of the law has been declared unconstitutional (Decision No. 012-016-019/PUU-IV/2006).

The Constitutional Court has applied what appears to be inconsistent logic behind its decision as an effort to avoid legal chaos while still trying to take into account justice and expediency, but not legal certainty.

So giving a maximum of two years until the implementation of the Job Creation Law, even though it was declared unconstitutional, can be seen as a move of tolerance on the part of the Constitutional Court so as to avoid legal chaos, given the fact that the Job Creation Law has already been applied to various sectors involving the wider public.

However, things became chaotic when the Constitutional Court added consideration 3.20.5 in the point 7 of the decision, which “suspends all strategic and broad-impact actions/policies”. Such suspension of action/policy will bring about many complex problems.

If it is only for such trivial matters, the Job Creation Law is not needed and it is better to cancel it altogether without a grace period of two years.

First, why should the Constitutional Court enforce the Job Creation Law, which it has declared as unconstitutional, if it is only for things that are neither strategic nor have a broad impact? If it is only for such trivial matters, the Job Creation Law is not needed and it is better to cancel it altogether without a grace period of two years.

Second, Article 4 of the Job Creation Law stipulates that “the scope of the Job Creation Law is a strategic policy” that, reasonably, must have broad impacts.

Thus, suspending the implementation of the derivative actions/policies of the Job Creation Law is akin to delaying the implementation of the entire Job Creation Law. As a result, the two-year grace period is no longer relevant.

Why enforce a law that is unconstitutional, if only to suspend its implementation entirely?

Last but not least, the most chaotic consequence from point 7 of the decision is that all strategic actions/policies based on the Job Creation Law and its implementing regulations must be suspended, while the old rules may not be used because they have been amended or revoked by the Job Creation Law, which is binding.

As a result, there will be a void in strategic actions/policies that will potentially have a broad effect on job creation because while the legal basis remains valid, the implementation of its derivative actions/policies have been suspended.

For the dimension of job creation, which is certainly crucial to the livelihood of citizens, such a decision is undoubtedly fatal and fundamentally erroneous.

Solution

Now that Constitutional Court Decision 91 has been issued and is final and binding, the makers of the law (the President, the House of Representatives and regional lawmakers) must immediately abide by the decision and improve the legislation of the Job Creation Law.

The first step is to develop standard rules in Law No. 12/2011 in conjunction with Law No. 15/2019 on drafting legislation, which accommodates the omnibus model.

The legislative process must correct the provisional flaws that the Constitutional Court raised, including the urgency of truly meaningful public participation.

Kompas/Priyombodo

Workers demonstrate to demand the cancellation of Law Number 11 concerning Job Creation in Central Jakarta, Wednesday (16/12/2020).

Its makers must move swiftly and cannot afford any additional delay, because the potential impacts of the void in strategic actions/policies must be immediately resolved. It should also be noted that, even though the Constitutional Court only questioned the legislative process, a material discussion of the Job Creation Law is inevitable, because Decision 91 means that everything must be repeated, especially as regards the requirement that public participation may not be a mere formality.

In the end, it is imperative to pursue legislation that not only guarantee a healthy investment climate, but also serve the interests of the people as the owners of the republic. This should be the first and last case of the Constitutional Court's inconsistency in effecting chaos on the Job Creation Law.

Denny Indrayana, Professor of governance law; senior partner at Integrity Law Firm

(The article was translated by Musthofid).