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'Fatal' errors found as Job Creation Law enters into force

Jakarta Post - November 4, 2020

Ardila Syakriah and Budi Sutrisno, Jakarta – The highly contentious Job Creation Law that President Joko "Jokowi" Widodo signed on Monday contains what some legal experts consider "fatal" errors that expose a flawed legislative process, which may provide strong grounds for a judicial review at the Constitutional Court.

The government uploaded at the 11th hour on Monday the 1,187-page purported final document of Law No. 11/2020 on job creation on the official website of the State Secretariat, which allows it to enter into force nearly a month after it was passed by the House of Representatives and following a series of nationwide protests.

However, as various parties began poring over the details of the divisive piece of legislation, legal experts said they had found substantial errors in articles 6 and 175 that could technically void the document, or at least expose serious faults in the procedure.

Given that these errors were found in the early pages of the manuscript, the experts said they expected to identify many more as they studied it further.

Article 6 makes a clear reference to Clause 1a of Article 5 in stipulating improvements to the investment and business ecosystems by implementing a risk-based approach to business licensure, and by simplifying basic requirements for business permits, industry-specific permits and investments. Article 5 does not contain Clause 1a.

Meanwhile, Clause 5 of Article 175 on government administration refers back to Clause 3 of the same article, when it actually should have referenced Clause 4, experts found.

Matter of typo

The fact that there were still errors in the final manuscript meant that the government should not be able to implement the articles in question, nor should they be able to derive any implementing regulations from them, said Bivitri Susanti, a constitutional law expert from the Jakarta Jentera School of Law.

Laws and their implementation should be based on what was written and should not rely on the interpretations of those who executed the law, she said.

State Secretary Pratikno brushed off the errors in a statement on Tuesday, saying that his ministry had reviewed the draft law upon its submission by the House. He admitted there were "technical errors" and reported them to the House secretary-general office for revision.

"Today we found technical, writing errors [...] but they are technical, administrative and won't affect the implementation of the Job Creation Law," Pratikno claimed.

The Center for Indonesian Law and Policy Studies (PSHK) issued on Tuesday a statement rejecting the argument dismissing the errors as a simple matter of typos.

It said a similar error was found in Clause 4 of Article 116 on criminal provisions in Law No. 32/2004 on regional administrations. At the time, a judicial review was filed with the Constitutional Court.

"The formulation errors are but one form of violation of the principle of clarity in drafting [law], as regulated in Article 5(f) of Law No. 12/2011 on the drafting of laws and regulation," the group said.

Bivitri said that revising or correcting an article of law in order for it to be implemented must involve a separate legislative process and could not be done "arbitrarily"; the only other possibility is for the President to issue a regulation in lieu of law (Perppu).

"The State Secretary cannot just turn around and revise it," she emphasized.

The 1945 Constitution allows for a Perppu to be issued on account of compelling and/or urgent matters. It would immediately take effect upon its passage by the president, but would depend on deliberations at the House in order for it to be passed into law.

However, Bivitri said the issuance of a Perppu to counter the legal uncertainty of implementing erroneous articles was a "debatable" course of action. She said the two aforementioned articles were further proof of a recklessly drafted and rushed piece of legislation, especially given the 1,000-page count.

Multiple versions

Nationwide protests erupted after lawmakers passed the Job Creation Law on Oct. 5 following a swift deliberation process in which the government gave the public little to no time to scrutinize it.

The passage of the so-called omnibus bill, which was already under fire for reportedly revising provisions to the detriment of labor rights and environmental protections, saw the general public, civil society organizations and legal experts condemning the legislative process as "flawed", especially when it became known that the legal manuscript continued to undergo multiple changes after securing House approval.

At least five versions of the draft legislation, each with a different amount of pages, had made the rounds on social media and online chat groups: the 905-page version that was used for the House plenary session on Oct. 5; a 1,054-page version dated Oct. 9 that "leaked" to the public; a 1,035-page soft copy that bore the file name "Send to President"; an 812-page version submitted to the President for his signature; and a 1,187-page draft that was given to Islamic organizations for review. There also exists a 1,028-page draft dated March 2020, before the law was passed.

Despite the protests, the government insisted that the law was necessary to improve the business climate, as the country's economy shrank 5.32 percent year-on-year in the second quarter this year amid the COVID-19 pandemic.

"This has been the worst legislative process in Indonesian history," Bivitri said.


Other experts have noted that the errors in the legislation could strengthen ongoing efforts to challenge the law at the Constitutional Court.

"Editorial errors and bad practices in the drafting process are very clear evidence for the Constitutional Court to declare the Job Creation Law faulty on procedural grounds, so it must be declared 'thoroughly not legally binding'," the PSHK said.

It also called on the government to refrain from moving ahead with formulating the law's implementing regulations.

Separately, the Confederation of Indonesian Trade Unions (KSPI) announced its rejection of the law and reiterated calls for it to be repealed. The union, alongside the All-Indonesia Workers Unions Confederation (KSPSI-AGN), filed a petition for a judicial review of the law on Tuesday.

"After studying the contents of the law, [we found that] the employment cluster is almost entirely detrimental to workers," KSPI president Said Iqbal said in a statement.

Iqbal highlighted several points of contention: governors are not required to impose minimum wages at the city/regency level; the time limit for employing contract workers before employing them on a permanent basis was eliminated; the outsourcing of workers is no longer limited to five types of jobs; and there is a reduced severance pay responsibility for employers.

Johnny Darmawan, vice chairman for oil and industry at the Indonesian Chamber of Commerce and Industry (Kadin), expected the government to draft implementing regulations soon, arguing that the process could still run parallel with efforts to challenge the law.

If there were indeed errors in the law, then the government would have to find ways to revise them, he said.

– Marchio Irfan Gorbiano contributed to the story.

Source: https://www.thejakartapost.com/news/2020/11/03/fatal-errors-found-as-job-creation-law-enters-into-force.htm