By: Julio Achmadi | Member of the Partnership for Governance Reform
The Draft of Job Creation Bill (RUU Cipta Kerja) has been passed in the plenary meeting of the House of Representatives (DPR) on October 5. Despite reaping a lot of criticism and rejection from various groups, DPR and the government insisted on completing the discussion of the law which is hoped to attract foreign investors. Now, the Constitutional Court (MK) is expected to uphold justice for the people, especially those who are affected by the enforcement of this law.
The law which was created using the omnibus method can be challenged in MK through judicial review in the form of formal and material review. A formal review is conducted to make sure whether there is a legal flaw in the legalization process. MK has issued a decision giving a time limit of 45 days from the date a law is passed and published in the State Gazette as a deadline for conducting a formal review.
The contents of the formal review can be very diverse. It could be about the incompatibility of the form and format of the Job Creation Law, the absence of a legal basis for the omnibus law method, the non-involvement of the community in the deliberation process, hasty ratification in a health emergency situation, and non-conformity with DPR regulations.
A material review is carried out to further investigate articles that are suspected of being unconstitutional, such as the opinion that the law does not have human rights, an anti-environmental perspective, and deprives people's living space. Unlike the formal review, the material review has no deadline. The judicial review applicants can muster a lot of support from the affected groups, academics, and experts in various fields to present substantive arguments in the material review process. The material review process of the Job Creation Law would be very draining and time-consuming. Thus, the applicant should start preparing ammunition as soon as possible by consolidating with all elements of civil society that are potentially affected.
However, Jorawati Simarmata (2017) found the fact that, during 2003-2015, MK had conducted a judicial review of 400 laws with a total of 212 granted decisions. But MK did not grant any formal review. He concluded that formal review was difficult to grant because MK prioritized material review and the principle of benefit. Previous experiences become the best lessons for the future. Therefore, this should be the applicant's note in submitting a judicial review of the Job Creation Law to MK.
I believe the option to conduct a judicial review on the Job Creation Law will be tinged with conflicts of interest and allegations of the non-independence of MK after the revision of the Constitutional Court Law last September. However, there are not many other remedies that are currently provided in the Indonesian legal system.
Apart from legal efforts, people who reject the Job Creation Law can take political resistance, for example by not electing those who sit in the DPR at this time in the next general election. Demonstrations become a rather tough choice in a pandemic situation, but people are still doing it to show their genuine concern about this law. They are willing to fight with Covid-19 to voice their opinions which were not heard by the DPR and government. The impact of the passing of the Job Creation Law could also spread to local elections this year, especially with the option not to vote (golput).
The government has justified every means to expedite the process of passing the draft Job Creation Law. The DPR and the government played cat and mouse and took advantage of the minimum amount of direct pressure during the pandemic. The use of repressive and intimidating methods was also enforced to suppress resistance. The security approach taken by the police previous week before the passing of this law has undermined democracy and violated people's rights to express opinions and voice their aspirations.
The public anger and disappointment of the passing of the Job Creation Law have now rolled to MK as people's last bastion of resistance. MK is expected to enforce justice over the government and people's representatives who have done wrong.
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