Marchio Irfan Gorbiano, Jakarta – As labor unions, activists and their lawyers prepare to petition the Constitutional Court for a judicial review of the recently passed Job Creation Law, critics have accused President Joko "Jokowi" Widodo of sidestepping public concerns over the rushed process to pass the legislation.
Nearly a year after the President announced his intent to push a set of sweeping revisions in a draft law called the omnibus bill on job creation, lawmakers passed the bill on Oct. 5. The House of Representatives passed the bill earlier than originally expected, in a move that sidestepped unions' plans to hold a nationwide strike in protest of the bill.
The Jokowi administration has continued to insist that the new law is intended to attract foreign investment and create jobs to prop up a floundering economy. This point received a rare nod on Friday from the World Bank, which lauded the legislation as "a major reform effort".
Previously, WB Indonesia and Timor Leste country director Satu Kahkonen aired concerns about the bill's potential environmental and labor impacts.
On Oct. 9, in his first public statement since the bill's passage, the President brushed off the criticisms as "disinformation and hoaxes spread through social media".
The statement appears to disregard the fact that the public had extremely limited access to any legal means for preventing the bill's passage, given the current COVID-19 restrictions. Even so, the House held its deliberations behind closed doors without inviting public input, another contentious point critics have raised as regards the lack of legislative transparency.
The President added, however, that "relevant parties" were welcome to challenge the law. "If there is any dissatisfaction toward the Job Creation Law, please submit a [request for] judicial review with the Constitutional Court," he said.
Experts were left stumped by Jokowi's bombastic response, with some saying that the President had failed to acknowledge the public's immediate and widespread concerns.
Constitutional law expert Bivitri Susanti, from the Indonesia Jentera School of Law in Jakarta, said Jokowi's statement did not address the problematic deliberative process that involved hardly any public participation. Resorting to a judicial review at the Constitutional Court also did "not address the root of the problem", Bivitri told The Jakarta Post on Tuesday.
"It's as though [lawmakers and officials] are passing the buck and convincing themselves that they exercised due diligence in the legislative process, when in fact, [they didn't]," she underlined.
Furthermore, four "final" version of the omnibus bill were in public circulation after the House passed the legislation, preventing effective scrutiny of the new law. It remains unclear whether these versions were leaked deliberately, and by whom.
The approved final version of the draft law, which spans 812 pages, was submitted to Jokowi this Wednesday for his signature.
Chief expert staffer Donny Gahral Adian of the Executive Office of the President said that the government would immediately begin drafting the implementing regulations for the new law. These might include both presidential and government regulations, and the President had set a deadline for all implementing regulations to be issued within three months from the date on which the bill was passed into law.
Donny, however, made assurances that the public would be involved in the regulations' deliberative process.
"The drafting team is sure to invite the academia, public figures, civil society [representatives] and other stakeholders who can offer input for the implementing regulations," he said.
The Confederation of Indonesian Trade Unions (KSPI), one of the largest and most vocal labor groups that oppose the law, said it would not participate in any processes related to the regulations.
"Workers have rejected the Job Creation Law. As such, it is impossible for them to accept the implementing regulations, let alone be involved in drafting them," said KSPI president Said Iqbal in a statement on Thursday.
The KSPI and other labor groups have vowed to continue protesting the law while they mulled over several options. These included demanding that the President issue a regulation in lieu of law (Perppu) to revoke the Job Creation Law and lobbying the House for a legislative review.
According to Said, a petition for judicial review was a possible option, but he stressed that the unions needed to be able to review the approved version of the law before approaching the Constitutional Court.
Constitutional Court spokesman Fajar Laksono, when contacted by the Post on Friday, confirmed that three separate parties had already submitted petitions for a judicial review of the Job Creation Law. Two of the petitions, both filed on Oct. 12, challenged certain articles in the law, while the third petition was filed Oct. 15 and asked the court to repeal the law in its entirety.
Fajar said the court would process the petitions according to the appropriate procedures, and that it was up to the court's justices whether to grant the petitions or not.Meanwhile, deputy director Wahyudi Djafar of the Institute for Policy Research and Advocacy (ELSAM) said that the best compromise the government could and should offer was to issue a Perppu to delay the law's commencement. Doing so would also allow some room for dialogue.
"If the omnibus [law] is really necessary, then it is better to reopen the debate until public opinion is truly represented," Wahyudi said on Wednesday. "A Perppu could be issued not to revoke [the law], but to delay its entry into force."
Types of reviews
In a legislative review, the House reviews certain aspects of a law in line with public demand and makes any necessary amendments, or it can annul specific points.
A Perppu is the equivalent of an executive review, in which the President replaces a law with emergency provisions. The President is not required to consult the House when issuing a Perppu.
In a judicial review, individuals or groups can challenge a law through the Constitutional Court, the country's sole interpreter of the Constitution. If the court grants the petition, it reviews the constitutionality of the legislative process or certain provisions in the challenged law. The court then issues a final and binding decision that could result in repealing the law or returning it to the House for amending the provisions it has found to be unconstitutional.