Constant Looming Uncertainty, Revising The “Partly Unconstituional” Job Creation Law

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omnibus law
Illustration: LEONARDO A. PUTONG

IO – On November 25, 2021, the Constitutional Court (MK) ruled on judicial review filing No. 91/PUU-XVIII/2020 in a lawsuit challenging Law 11/2020 on Job Creation. The MK verdict has been vigorously debated by many parties, from constitutional law experts, academics, practitioners, researchers and NGO activists to trade/labor union members.

The judicial review, filed by Hakiimi Irawan Bangkid Pamungkas (a private employee), Ali Sujito (a university student), Muhtar Said, SH, MH (a lecturer), Migrant Care (a workers’ rights group), Kerapatan Adat Nagari Sumatra Barat (West Sumatra conference of communal elders), and the Minangkabau Custom Court, is one among several petitions submitted by individuals and institutions.

The Job Creation Law, also known as the “Omnibus Law”, attracted considerable controversy, as it revises and combines numerous laws across a wide range of domains, comprising 11 clusters, from environmental, forestry, investment, health care, education, employment and so forth.

MK Decision No. 91/PUUXVIII/2020 only ruled on its for mal aspect, namely, the procedure of passing the law, which was declared flawed because it runs counter to guarantees contained within the 1945 Constitution. It has yet to touch on the material aspect, namely, the substance of individual articles in the law. The MK decision related to the formation of a law is the first ever. To date, all of its decisions have concerned material reviews.

The commotion over the decision lies in the ruling itself, which is regarded as ambiguous in its implementation, giving rise to multiple interpretations, especially regarding the phrase “conditionally unconstitutional.”

In Point Three of its verdict, the nine-judge panel ruled that Law 11/2020 does indeed run counter to the 1945 Constitution and is thus declared unconstitutional, if no amendment is made within two years. However, in Point Four, it is stated that the law remains effective until that time.

Then, in Point Five, the Court ordered lawmakers to revise the law within two years from the moment the ruling was read. Otherwise, Law 11/2020 on Job Creation will become “permanently unconstitutional” and has to be repealed. As a consequence, Point Six stipulates that all the previous laws it has replaced must be reinstated.

In Point Seven, the justices ordered the Government to suspend all actions or policies with broad and strategic impact, and to issue no new implementing regulations for the law.

A fierce clash of opinions soon ensued, over how the MK decision should be interpreted. In its public release, the Coordinating Economic Minister asserted that the Job Creation Law remains in force, and the Government will comply with the ruling by continuing to carry out the mandate of the law. Labor Unions, on the other hand, argued that the implementation of the law should be postponed and, in turn, the governors’ decision on the provincial minimum wage (UMP) should be revoked.

The Indonesian Legal Aid Foundation (YLBHI), along with 17 other legal aid organizations across Indonesia, declared that the MK decision clearly shows that the Government and the House of Representatives have violated the Constitution by contravening the principles of law formation. Although it was ruled conditionally unconstitutional and the Government is given the opportunity to revise it, the MK decision is claimed to represent an error of principle. The Government must halt any implementation of the law and postpone any processes in creating derivative regulations.