THE LEGAL IMPACT OF THE CONSTITUTIONAL COURT’S DECISION FOR A MATERIAL TEST CLAIMS AGAINST LAW NO 11 YEAR 2020 CONCERNING JOB CREATION (DECISION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA NUMBER 91/PUU-XVIII/2020)

Drafted by    :Imas Puji Nuryanti, S.H., Nasfiahtul Istani Daely, S.H.

Reviewed by:Noverizky Tri Putra Pasaribu, S.H, LL.M (Adv.)

The Constitutional Court partially granted the application for a formal review of Law Number 11 of 2020 concerning Job Creation (“Law No. 11/2020”) through 9 (nine) Constitutional Justices namely Anwar Usman as Chairman and Member, Aswanto, Wahiduddin Adams, Suhartoyo, Enny Nurbaningsih, Saldi Isra, Arief Hidayat, Manahan MP Sitompul, and Daniel Yusmic P. Foekh with the reading of Decision Number 91/PUU-XVIII/2020 on the case of formal review of Law No. 11/2020 against the 1945 Constitution of the Republic of Indonesia (“1945 Constitution”) at the Plenary Session of the Constitutional Court which is open to the public. In the decision, it is known that there are 6 (six) applicants briefly requesting for formal test application as follows:

1. Petitioner I:

Whereas Petitioner I explained that he was an individual citizen Indonesian who have worked as a Contract Worker for a certain time (PKWT). Petitioner I feels that his constitutional rights has been impaired by the enactment of the Law No. 11/2020 in Article 81 which removes the rule regarding the time period certain time work agreement (PKWT) or Contract Workers as referred to in regulated in Article 59 paragraph (4) of the Manpower Law, thus eliminating Petitioner I opportunity to become a permanent employee. In addition, there are the provisions of the norms of Law No. 11/2020 which are detrimental to constitutional rights Petitioner I to get fair and proper compensation and treatment in the employment relationship, including the reduction of weekly rest periods, removing some of the wage policies that protect workers/laborers, abolish sanctions for business actors who do not pay wages, abolish rights workers/labourers to be able to apply for layoffs.

2. Petitioner II:

Whereas Petitioner II explains that he is an individual citizen Indonesia who is currently studying at the Teacher Training College and Modern Education Ngawi. Petitioner II feels that his constitutional right to obtain guarantee of fair legal certainty to develop themselves through fulfill their basic needs and have the right to education and benefit from science and technology to improve quality of life and for the welfare of mankind. This is a result the enactment of Law No. 11/2020 which makes education a business field in industrial and economic activities, thereby reducing educational goals as stated in the constitution;

3. Petitioner III:

Whereas Petitioner III explains that he is an individual citizen Indonesia who works as a Lecturer who teaches Law courses State Administration and State Administrative Law. Law No. 11/2020 violates the provisions of the formation of laws and regulations. Petitioner III feels that his constitutional right to get legal certainty due to the process of forming Law No. 11/2020 who violate the provisions of the formation of laws and regulations as stipulated in the 1945 Constitution and Law No. 12/2011 concerning Making Rules, thus becoming administrative practices that cannot be explained academically by Petitioner III to his students on campus;

4. Petitioner IV:

Whereas Petitioner IV as a Legal Entity in the form of an association called Perhimpunan Indonesia Untuk Buruh Migran Berdaulat-Migrant CARE represented by its Management, Wahyu Susilo as Chairman and Anis Hidayah as Secretary. Applicant IV feels harmed by the existence of Article 84 of Law No. 11/2020 which changes the provisions in the Law Number 18 of 2017 concerning the Protection of Indonesian Migrant Workers (“Law No. 18/2017”). In which in Article 89A states, “At the time of enactment of the Act” regarding job creation, the meaning or meaning of Indonesian Migrant Worker Placement Company Permit in the Law No. 18 of 2017 adjusts to the provisions regarding Business Licensing”. Petitioner IV also feels aggrieved due to changes in the provisions of the norms of Article 57 paragraph (1) and paragraph (2) as well as Article 87 Law No. 18 of 2017 does not involve Petitioner IV in the discussion process the formation of Law No.11/2020, even though Petitioner IV has been doing efforts to increase protection for Indonesian Migrant Workers up to the establishment of the Law No. 18 of 2017;

5. Petitioner V and VI:

Whereas Petitioner V as a Legal Entity in the form of the association named Badan Koordinasi Kerapatan Adat Nagari Sumatera Barat (Bakor KAN Sumatera Barat) and Petitioner VI as Mahkamah Adat Alam Minangkabau (MAAM), which is domiciled in West Sumatera.

That Petitioner V and Petitioner VI have the responsibility to maintain and protect the existence of indigenous peoples, including participating in maintaining their existence ulayat lands, and advocating for expropriated ulayat lands management by other parties without the consent of the indigenous peoples as customary land owners. Petitioner V and Petitioner VI feel aggrieved by the abolition of the provisions of criminal sanctions on the use of customary land rights by business actors without obtaining the approval of indigenous peoples as holders of customary rights as stipulated in Article 31 of Law No. 11/2020 which has changed several provisions in Law No. 22 of 2019 concerning Sustainable Agricultural Culture System. In the opinion of Petitioner V and Petitioner VI the regulation will have an impact on the occurrence of arbitrary grabbing of customary lands. Petitioner V and Petitioner VI did not receive information regarding the abolition of the criminal sanction due to not open or not participatory in the formation of Law No. 11/2020, therefore that it has detrimental to the constitutional rights of Petitioners V and Petitioners VI. The abolition of criminal sanctions in the use of customary land rights by business actors without the approval of indigenous peoples.

With respect to the petition, the decisions delivered by the 9 (nine) Constitutional Justices essentially judged:

1. Declaring that the applications of Petitioners I and II cannot be accepted;
2. Granting part of the application of Petitioners III, IV, V and VI;
3. Declaring the Law No. 11/2020 is contrary to the 1945 Constitution;
4. Declaring the Law 11/2020 is still valid until repairs are made to the establishment in accordance with the specified grace period;
5. Instructing the legislators to fix it within 2 (two) years, if it is not corrected after the grace period it will be permanently unconstitutional;
6. Declaring that if after 2 (two) years it is not repaired, then Law 11/2020 which was revoked is re-applied;
7. Declaring to suspend strategic and broad-impact actions/policies, and may not issue implementing

Furthermore, from Decision Number 91/PUU-XVIII/2020, there are things that are quite interesting, where the Constitutional Court in its consideration stated that Law No. 11/2020 conditionally unconstitutional.[1] Conditionally unconstitutional can be interpreted as a decision whose application is declared partially granted by stating that Law No. 11/2020 contradicted to the 1945 Constitution where the relevant norm is deemed unconstitutional for certain reasons or there are certain requirements interpreted by the judge. Judges of the Constitutional Court in their considerations also said that related to Law No. 11/2020 needs to be improved in order to fulfill a definite, standard and methods, as well as the fulfillment of the principles of law formation as mandated by Law No. 11/2020. Therefore, in order to fulfill the needs, the Constitutional Court considers it necessary to give a time limit for the legislators to make improvements to the procedures in the formation of Law No. 11/2020 for 2 (two) years since the decision was pronounced. If within 2 (two) years, no amendments are made to Law No. 11/2020, the Constitutional Court stated against Law No. 11/2020 has legal consequences being permanently unconstitutional.

For that matter, there are several impacts if the legislators cannot complete the revision of Law No. 11/2020:

1. If within 2 (two) years, Law No. 11/2020 is not corrected, then the Court declares that Law 11/2020 has legal consequences being permanently unconstitutional .
2. Whereas if within a period of 2 (two) years the legislators cannot complete the revision of Law No. 11/2020, for the legal certainty, especially to avoid a legal vacuum, the law or articles or material content of the Law that has been revoked or amended must be declared valid again.
3. Whereas in order to avoid a huge impact on the enactment of Law No. 11/2020 during the 2 (two) year grace period, the Constitutional Court also stated that the implementation of Law No. 11/2020 related to strategic matters and broad impact to be postponed in advance, including not justifying the formation of new implementing regulations and not justifying state administrators making strategic policies that can have a broad impact based on the norms of Law No. 11/2020.

Conditionally unconstitutional is basically a decision model that legally does not cancel and declares a norm not valid, but the decision contains an interpretation of a material content of paragraphs, articles and/or parts of the law or the law as a whole which basically declared contrary to the constitution, but still has binding legal force.[2] In conditionally unconstitutional, if the conditions determined by the Constitutional Court are fulfilled, then the validity of the norm can still be maintained (conditionally constitutional) even though basically it is contrary to the constitution (condionally unconstitutional).

It should be noted that the decision of the Constitutional Court that has been pronounced or read out is not retroactive, but applies forward (progressive) since it was pronounced. This means that the new legal situation has come into force since the decision of the Constitutional Court has been pronounced or read out in a plenary session which is open to the public. This is a consequence of the principle of presumption of constitutionality in Article 58 of Law Number 24 of 2003 concerning the Constitutional Court. the validity of the law until there is a decision stating that the law is contrary to the constitution. This provision indicates that the decision of the Constitutional Court is forward or non-retroactive. Therefore, the government, other state institutions and the general public related to the decision are obliged to respect and implement the decision.[3] The legal consequences arising from a judge’s decision when it comes to judicial review are regulated in Article 58 of Law No. 8 of 2011 concerning Amendments to Law No. 24 of 2003 concerning the Constitutional Court, which essentially states that the law being tested remains applies before there is a decision stating that the law is contrary to the 1945 Constitution.[4]

In conclusion, the Constitutional Court’s decision on the formal review of Law No. 11/2020 can be a guideline for the constitutionality of the formation of laws and regulations as the embodiment of people’s sovereign democracy in a state of law, thus urging the government and the House of Representatives to involve broad public participation in drafting the revision of the law on the establishment of legislation and Law No. 11 of 2020 which must be corrected.

References and Legal Base:

• Decision of the Constitutional Court of the Republic of Indonesia Number 91/PUU- XVIII/2020, page 413.
• Center for Research and Case Studies, Management of Information and Communication Technology at the Registrar’s Office and the Secretariat General of the Constitutional Court of the Republic of Indonesia 2013, Models and Implementation of Constitutional Court Decisions in Judicial Review (Study of Decisions 2003-2012), page 10-11.
• HAS Natabaya, Reorganizing the Indonesian Legislation System; Footsteps and Legal Thoughts HAS Natabaya, SH, LLM (Constitutional Judge Period 2003-2008), Secretariat General and Registrar of the Constitutional Court, Jakarta, 2008, page 287 – 288.
• Law Number 8 of 2011 concerning Amendments to Law Number 24 of 2003 concerning the Constitutional