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Legal experts say emergency regulation replacing Jobs Law unconstitutional

CNN Indonesia - December 30, 2022

Jakarta – Constitutional law expert Feri Amsari from the Andalas University in Padang believes that President Joko "Jokowi" Widodo's move to issue a Regulation in Lieu of Law (Perppu) on the Omnibus Law on Job Creation is unconstitutional.

This is because the Jobs Law has already been declared conditionally unconstitutional by the Constitutional Court (MK) and the court mandated that the law be revised within a time frame of two years, or by November 25, 2023.

"This is clearly an unconstitutional move undertaken by the president. Given that the MK asked that law be revised within two years", Amsari told CNN Indonesia in an SMS message on Friday December 30.

Amsari believes that no compelling crisis exists as stipulated under Article 22 Paragraph 1 of the 1945 Constitution that could be used as a pretext for the president to issue a Perppu. The pretext of the impact of the Russian-Ukrainian war as conveyed by the government is irrelevant.

"The president must be smart and obey the constitution, not circumvent it through various means to justify his political moves", said Amsari.

"If the president doesn't understand constitutional law, then all those in his immediate circle don't understand and should be dismissed from office", he added.

Constitutional law expert Refly Harun is asking the House of Representatives (DPR) to reject the Perppu on the Jobs Law because, he explained, the Constitutional Court mandated that the Jobs Law be revised, not replaced by a Perppu.

"Although issuing a Perppu is the subjective right of the president, there must be an objective measure in the DPR to reject or accept it. Likewise with the MK, there is a measure of its constitutionality to cancel it", explained Harun.

Harun also does not believe that there is a compelling crisis related to the Perppu. The government, continued Harun, just wants a quick fix.

"Based on its name, a Perppu must be issued based on 'a compelling crisis". Where is this crisis?", asked Harun. "The government wants an easy way out yet there isn't any crisis whatsoever. The DPR should reject this Perppu, if not the MK should cancel it", he said.

Harun however is pessimistic about the current state of the Constitutional Court.

"Theoretically the Perppu could be brought before the MK and the Court could cancel it, if it is committed to its previous ruling [on the Jobs Law]. But if the MK's caught a cold it's a different matter, the composition of the MK has changed, right", he added referring to the DPR's recent removal of Constitutional Court justice Aswanto for failing to represent their interests.

The coordinator of the Legal Counsel Team on Decision Number 91/PUU-XVIII/2020 (the Jobs Law case), Viktor Santoso Tandiasa, said there are two options to fight the illegal actions committed by the president.

First, by submitting a judicial review of the Perppu with the Constitutional Court. Second, by waiting for the Perppu to be ratified into law by the DPR then submitting a judicial review with the court.

"Currently the Perppu already exists so it could be taken to the MK to correct this, but the problem is that the MK will take some time and before this the Perppu could become a law when it's taken to the DPR to be approved as a law", added Tandiasa.

Earlier, Coordinating Minister for the Economy Airlangga Hartarto said that the Perppu on the Jobs Law was justified because it met the conditions of a compelling crisis. He gave impact of the Russian-Ukrainian war on the Indonesian economy as the pretext for issuing the Perppu.

Hartarto said that the Perppu was intended to revise a number of stipulations in the Jobs Law in accordance with the Constitutional Court's ruling.

These included stipulations related to labour issues such as the minimum wage and outsourcing, harmonizing tax regulations and the relationship between the central and regional governments.

Meanwhile Coordinating Minister for Security, Politics and Legal Affairs Mahfud MD said that the Perppu would at the same time annul the Jobs Law's conditionally unconstitutional status. (ryn/bmw)

[Translated by James Balowski. The original title of the article was "Pakar: Perppu Cipta Kerja Jokowi Inkonstitusional, DPR Harus Menolak".]

Source: https://www.cnnindonesia.com/nasional/20221230133959-12-894112/pakar-perppu-cipta-kerja-jokowi-inkonstitusional-dpr-harus-menola