Perppu on Job Creation Set Bad Precedent for Constitutional Practice, Former Chief Justice Says

TEMPO.CO, Jakarta - The fourth Chief Justice of the Constitutional Court for the 2013-2015 period, Hamdan Zoelva, slammed the government regulation in lieu of law (Perppu) No. 2 of 2022 concerning Job Creation. Hamdan highlighted the urgency used by President Joko "Jokowi" Widodo as the reason for the issuance of the law, which replaced the Job Creation Law that had been declared conditionally unconstitutional in 2021.

The Constitutional Court's ruling No. 38/PUU7/2009 stipulates clear limits for a president to be able to issue a Perppu. But in the end, Hamdan acknowledged that there is still room for the president to interpret the urgency according to the ruling.

“Yes, in the end, it is what it is,” said Hamdan to Tempo on Saturday, December 31, 2022.

On November 25, 2021, the Constitutional Court declared that Law No. 11 of 2020 on job creation was conditionally unconstitutional and asked the government to amend it within 2 years.

Instead of amending the law, Jokowi issued the Perppu on December 30, 2022, given the existence of a compelling urgency to anticipate the threat of an economic crisis.

Coordinating Minister for Political, Legal, and Security Affairs Mahfud Md said that the reason was in accordance with the Constitutional Court Decision No. 138/PUU7/2009.

Hamdan argued that the process of forming the law should be improved instead of issuing a Perppu because there was no urgency. The two years given by the Constitutional Court, he said, should have been enough to complete the revision of the law-making process.

"This Perppu sets a bad precedent for our constitutional practices," said Hamdan. 

Based on the recent issuance of the Perppu, Hamdan expressed his concern that a president can issue a Perppu at any time in response to the Constitutional Court's verdict. Moreover, he said, the Perppu restores the unconstitutional status of a law that does not have binding legal force by the court.

Hamdan acknowledged the threat of an economic crisis as an excuse, and that threats and legal certainty could not be contested, because overcoming the crisis is in the public interest.

"The problem is, improving the law-making process can be carried out normally so that there is no need for a Perppu and no need to sacrifice the public interest while upholding the constitution and paying respect to court's decisions," Hamdan argued.

Hamdan also believed that there is no need to tighten the issuance of Perppu in the future. "In the Constitutional Court's decision, it is clear that the limitation on the issuance of Perppu does not have to be by making a Law on Perppu," Hamdan concluded.

FAJAR PEBRIANTO

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