Job Creation Law Endures a Steep Road of Revision
It is deplorable that inaccurate interpretation of the 1945 Constitution and the Constitutional Court's decision has left the Job Creation Law perching in legal certainty.
The constitution as a reference for solving constitutional problems is being tested.
Two days toward the end of 2022, a Government Regulation in lieu of law (Perppu) No 2/2022 concerning job creation was issued. The presence of this emergency law has provoked reactions because it is considered inconsistent with the Constitutional Court decree No. 91/PUU-XVIII/2020 that demands the rejected Law No. 11/2020 on job creation be improved under the mechanism of forming an ordinary law.
In its formal review, the Constitutional Court rules the formation of the Job Creation Law is contrary to the 1945 Constitution. The argument is that the omnibus method in drafting the Job Creation Law is not regulated in Law No 12/2011 concerning legislation (P3 Law). The law is also deemed to contradict the principle of openness because its legislation did not allow meaningful participation from the public.
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A formally flawed law should not have binding power to be enacted or does not apply. The Constitutional Court states that the Job Creation Law does not have conditionally binding legal force as long as "no amendments are made within two years after the decree." The consideration is to avoid legal uncertainty because many implementing regulations have been in place at the practical level.
The Constitutional Court's decision also provides suggestions on what to improve on the formation of the Job Creation Law. The P3 Law must regulate the use of the omnibus method in legislation. In the case of the Job Creation Law, it should be used as a reference in the fulfillment of the principle of openness. The demanded amendments can include an improvement on the substances objected to by community groups.
Sudden rush to Perppu
President Joko “Jokowi” Widodo said he respected the Constitutional Court's decision and would instruct the relevant ministers to follow up as soon as possible. As part of the follow-up steps, the government and the House of Representatives revised the P3 Law as an entry point to the improvement scheme.
The revision gave birth to Law No. 13/2022 as a second amendment to the P3 Law. Article 64 Paragraph (1a) regulates the use of the omnibus method in legislation.
Having enacted Law No. 13/2022, the government began to rework the Job Creation Law in the hope that the revision could be completed by 2022. The revision involved wider public participation as demanded. The revision process started with the preparation of academic papers and draft documents before being submitted to the House. Draft promulgation in several cities was also carried out by the government through the Job Creation Law Acceleration Task Force (Setneg.go.id, 28/10/2022).
Containing provisional contents similar to that in the Job Creation Law plus some new substantial provisions, the Perppu is intended to function as the Job Creation Law.
Given the revision steps to improve the Job Creation Law, it can be said that the government was moving on track in compliance with the Constitutional Court's decision. However, during the course, an emergency law in the form of government regulation in lieu of law (Perppu) on job creation suddenly came up. The government argued that it had opted for the Perppu in response to the prevailing precarious situation marked by the decline in world economic growth and rising inflation.
Containing provisional contents similar to that in the Job Creation Law plus some new substantial provisions, the Perppu is intended to function as the Job Creation Law.
Steep and winding road
In the event of an urgently compelling crisis, the president, in accordance with Article 22E Paragraph (1) of the 1945 Constitution, has the authority to issue an emergency law i.e. Perppu. However, in the case of the issuance of the Perppu on job creation, this executive authority should not have been autonomous considering that the Job Creation Law, ruled by the Constitutional Court as being conditionally unconstitutional, required a reform through the procedure normally done in the formation of an ordinary law.
The Constitutional Court ruled that the allowed two-year period for the law’s improvement should be sufficient to form a legal basis for adopting the omnibus method, as well as making revision on the Job Creation Law in order to comply with legislation procedures, especially in terms of the fulfillment of the principle of transparency.
The issued Perppu would have been rationally acceptable had the Constitutional Court's decision demanded the Job Creation Law’s immediate amendment without specifically mentioning the period of time and at the same time declared the Job Creation Law invalid, pending its revision.
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A demanded revision without a specific time period being mentioned would justify the establishment of a Perppu as stipulated in the Constitutional Court Decree No. 138/PUU-VII/2009. It states that an emergency situation must meet three conditions, namely the urgent need to resolve legal issues quickly as mandated by the law; the required law does not yet exist, which results in a legal vacuum; or the existing law is inadequate while the resulting legal vacuum cannot be overcome by forming a law in the usual procedure.
Looking to implement the Constitutional Court's decision, the government should have opted for the law’s improvement through the formation of a law instead of issuing the Perppu. The Constitutional Court's decision clearly orders that revisions to the Job Creation Law be carried out by involving more public participation.
The road on which the government long moved smoothly on track to the Job Creation Law revision, has now abruptly become steep and winding.
Article 96 of Law No. 13/2022 regulates how public participation gets involved. Academic text and the provisional draft should be openly accessible to the public. Legislators conduct public consultation activities, such as public hearings, working visits and other activities. The gathered outcome becomes additional material sources for the preparation and discussion of the drafts. The issuance of the Perppu evidently did not fulfill the provision of public participation.
It is deplorable that inaccurate interpretation of the 1945 Constitution and the Constitutional Court's decision has left the Job Creation Law perching in legal certainty. The policy over the issuance of the Perppu on job creation by taking Article 22 of the 1945 Constitution as the foundation but failing to get hold on Article 24C Paragraph (1) of the 1945 Constitution regarding the nature of the final and binding decision of the Constitutional Court is opening a room for another round of contention for formal review at the Constitutional Court.
The road on which the government long moved smoothly on track to the Job Creation Law revision, has now abruptly become steep and winding.
Bayu Dwi Anggono
Bayu Dwi Anggono, Professor of Legislation, School of Law, University of Jember; Secretary-General of the Association of State Governance Law and State Administrative Law Lecturers (APHTN-HAN)
This article was translated by Musthofid.
