Constitutional Court of Indonesia Ruled Omnibus Law on Job Creation as Conditionally Unconstitutional

Constitutional Court of Indonesia has granted a number of points in the judicial review of the Omnibus Law Number 11 of 2020 concerning Job Creation. 

The Constitutional Court ruled that the Omnibus Law Law No. 11 of 2020 concerning Job Creation is not in accordance with the constitution or conditionally unconstitutional.

The verdict was read by the Chief Justice of the Constitutional Court, Anwar Usman, in the formal trial of Law 11/2020 on Job Creation which was broadcasted online on Thursday (25/11/2021). 

"Declaring that the establishment of Law Number no. 11 of 2020 concerning Job Creation is contrary to the 1945 Constitution and does not have conditionally binding legal force, as long as it is not interpreted as not being corrected within two years of this decision being pronounced," said Anwar. 

Coordinating Minister for Economics Affairs (left) responded to the Constitutional Court's ruling regarding Omnibus Law on Job Creation which was declared as conditionally unconstitutional. (Photo: Coordinating Ministry of Economics Affairs)

Why is the Omnibus Law on Job Creation Unconstitutional?

Of the 9 judges of the Constitutional Court, 5 judges granted the petition for judicial review, while 4 judges expressed a dissenting opinion. 

The Constitutional Court judges considered that the merging method, the omnibus law format, in the Job Creation Law is not clear; whether it is a creation of a new law or a revision.

The Constitutional Court judge also considered that, in its formation, the Job Creation Law did not hold the principle of openness to the public.

The government did hold several meetings with several parties. However, the meeting is considered to be substantial enough. 

Likewise,  the constitutional court stated that the draft of the Job Creation Law is not easily accessible to the public.

In addition, the constitutional court also found the fact that there were changes in the writing of several substances after the joint approval of the House of Representative and the President. 

However, after the law is passed by the House of Representative, changes are not allowed.

Therefore, the Constitutional Court of Indonesia declared the Omnibus Law 11/2020 as unconstitutional with a condition, if there is not corrections are made within two years after the verdict was read.

In other words, if within 2 years the Omnibus Law Number 11 of 2020 on Job Creation is not revised, the the law will be automatically ruled as permanently unconstitutional.

In addition, the Court stated that all the laws contained in the Omnibus Law Law 11/2020 on Job Creation remain in effect until improvements are made.

The Constitutional Court also ordered the government to suspend all strategic and broad-impact policy actions from the Omnibus Law 11/2020 on Job Creation.  It is also not justified to issue new regulations relating to the Job Creation Law implementation. 

The judicial review of the Omnibus Law 11/2020 on Job Creation was submitted by five plaintiffs consisting of a private employee named Hakiimi Irawan Bangkid Pamungkas, a student named Novita Widyana, and 3 university students namely Elin Diah Sulistiyowati, Alin Septiana, and Ali Sujito. 

Hakiimi Irawan Bangkid Pamungkas is worried that the enactment of the Job Creation Law could erase the provisions of the rules regarding related to contract workers. The disadvantages of Hakiimi's constitutional rights include the reduction of weekly rest periods, the abolition of some wage policies that protect workers or laborers, and the abolition of sanctions for business owners who do not pay wages. 

Novita Widyana who is a student, feels disadvantaged because after graduating she has the potential to become a contract worker without any hope of becoming a permanent employee.

Elin Diah Sulistiyowati, Alin Septiana and Ali Sujito, feel disadvantaged because the education sector is included in the Omnibus Law on Job Creation. They assessed that the inclusion of an education cluster in the Omnibus Law on Job Creation could turn education into a business field. 

The Government Respond to the Ruling

Indonesian government respects and obeys the decision of the Constitutional Court on the Formal Examination of the Law Number 11 of 2020 concerning Job Creation.

This was emphasized by the Coordinating Minister for Economic Affairs, Airlangga Hartarto, accompanied by the Minister of Law and Human Rights, Yasonna H. Laoly, when giving a press statement regarding the government's explanation of the Constitutional Court's decision, Thursday (25/11/2021). 

"The government respects and obeys the decision of the Constitutional Court and will implement Law Number 11 of 2020 concerning Job Creation as well as possible in accordance with the decision of the Constitutional Court in question," Airlangga said. 

The government has passed the Job Creation Law on November 2, 2020 to ensure protection for all Indonesian people, including protection for getting a job and a decent living.

Along the way, there have been several requests for a review of the Job Creation Law which were submitted to the Constitutional Court.

"The Constitutional Court's decision has stated that the Job Creation Law is still constitutionally valid until its formation is corrected, in accordance with the grace period set by the Constitutional Court, which must be amended no later than two years after the verdict is read," he said. 

The Constitutional Court's decision also states that the government should not issue new regulations of a strategic nature until improvements are made to the establishment of the Job Creation Law. 

The laws and regulations that have been enacted to implement the Job Creation Law also remain in effect. 

"The government will immediately follow up on the Constitutional Court's decision in question through the preparation of amendments to the law and carry out as well as possible the other directions of the Constitutional Court as referred to in the Constitutional Court's decision," said the Coordinating Minister for Economic Affairs.