Panel chair Constitutional Justice Suhartoyo opening the preliminary judicial review hearing Law No. 11 of 2020 on Job Creation, Tuesday (8/12/2020) at the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary judicial review hearing of Law No. 11 of 2020 on Job Creation on Tuesday, December 8, 2020 in the plenary courtroom. The petition No. 109/PUU-XVIII/2020 was filed by Muchtar Pakpahan and Vindra of the central executive board (DPP) of the Confederation of Indonesia Prosperity Trade Union (KSBSI). They alleged that Articles 5, 6, and 81 of the Job Creation Law violate Article 27 paragraphs (1) and (2), Article 28D paragraph (2), and Article 28I paragraphs (2) and (4) of the 1945 Constitution.
Through attorney Gusmawati Azwar, the Petitioners said Article 81 point 15 of the Job Creation Law in Chapter IV on Employment Manpower discusses the revocation of Article 59 paragraph (4) of Law No. 13 of 2003 on Manpower, which reads, “A work agreement for a specified period of time may be made for a period of no longer than 2 (two) years and may only be extended one time for another period that is not longer than 1 (one) year.”
Article 81 point 15 of the Job Creation Law also revoked Article 65 paragraph (2) of the Manpower Law, which guaranteed that not all positions can be outsourced—only those unrelated to the company’s core business can. The Petitioners believe the removal of this norm will allow all positions to be outsourced without time limit, thus categorized as propagating outsourcing.
“Once outsourced, [forever] outsourced. [President Soekarno] believed aannemer to be an imperial capitalist slavery that must be eradicated from Indonesia. It went against Article 27 paragraph (2) of the 1945 Constitution,” said Gusmawati before Constitutional Justices Suhartoyo (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh.
The Petitioners also stated that Article 81 point 26 of the Job Creation Law revoked Articles 89 and 90 of the Manpower Law. Article 89 paragraph (3) of the Manpower Law reads, “The minimum wages as referred to under paragraph (1) shall be determined by Governors after considering recommendations from Provincial Wage Councils and/or Regents/Mayors.” Meanwhile, Article 90 paragraph (1) reads, “Entrepreneurs are prohibited from paying wages lower than the minimum wages as referred to under Article 89.” The annulment of Article 89 removed the previously existing tripartite (entrepreneurs, the governments, and workers). Governors are thus allowed to discuss minimum wages with entrepreneurs but without workers representation.
The other attorney Agus Supriyadi said that in the petitum the Petitioners requested that the Court declare the Job Creation Law in violation of the goals of the establishment of the Indonesian government, as referred to under the fourth paragraph of the Preamble to the 1945 Constitution, and not legally binding.
Justices’ Advice
In response, Constitutional Justice Manahan M. P. Sitompul offered recommendations on the format of the petition and the Petitioners’ profiles. He also asked the Petitioners to clarify the norms petitioned for review. He then explained that the Petitioners’ legal standing as both individual citizens and the central executive board of KSBSI have different legal implications, therefore, they must choose either one. He also asked them to elaborate on their constitutional impairment, specific or potential, and the touchstones used to review the norms’ constitutionality.
Similarly, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioners to clarify their legal standing, whether as a private or public legal entity. He asked that they ensure that the they could represent the union in and out of court, based on the union’s documents.
Meanwhile, Constitutional Justice Suhartoyo questioned the petitum, which didn’t specify the articles deemed unconstitutional and not legally binding. It only stated that Law No. 11 of 2020 is in violation of the 1945 Constitution. “This reads like the petitum of a formal judicial review and as if the entire law is unconstitutional when the posita only challenges several articles. The petitum should be in line with the posita,” he explained.
Before concluding the hearing, Justice Suhartoyo reminded the Petitioners to submit a revised petition no later than Monday, December 21, 2020 at 14:30 WIB to the Registrar’s Office of the Constitutional Court so the following hearing can be scheduled.
Writer: Sri Pujianti
Editor: Nur R.
PR: Tiara Agustina
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 12/11/2020 11:36 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.