The Bill on Job Creation (Omnibus Law) is Legally Defective and Violating Citizens' Constitutional Rights

Number: 002/SP/IMPARSIAL/VII/2020

On Thursday, July 16th, 2020, the House of Representatives (DPR) ratified the new Priority National Legislation Program (Prolegnas) for 2020 at the DPR Plenary Session. The meeting included 37 draft laws (RUU) into the 2020 Priority National Legislation Program with the Job Creation Bill (Omnibus Law) included. In fact, the discussion of the bill is still continuing even though the DPR members are currently in recess.

The inclusion of the Job Creation Bill (Omnibus Law) into the 2020 Priority Prolegnas is very unfortunate, considering that the Job Creation Bill has many problems ranging from the preparation process to the substance in it.

First, the process of drafting the Job Creation Bill was considered procedurally flawed, because it was carried out in a closed, non-transparent manner, and did not provide space for civil society participation. The draft job creation bill was not disseminated by the DPR and therefore cannot be accessed by the public. This is a violation of Article 89 jo. 96 Law No. 12 of 2011 concerning the Establishment of Legislation which requires the government to open access to the Bill to the public. In addition, the Omnibus Law Task Force formed by the government, which mostly comes from the government and entrepreneurs, is also considered exclusive and does not accommodate the aspirations of the people affected by the bill.

Second, the substance of the regulation on the Job Creation Bill, particularly those contained in Articles 166 and 170, contradicts the decisions of the Constitutional Court (MK) and Law no. 12 of 2011. Article 166 of the Job Creation Bill violates the constitution, because it reloads provisions that had previously been annulled by the Constitutional Court. For example, Article 166 of the Job Creation Bill states that the Presidential Decree can annul a Regional's. In fact, this is contrary to the Constitutional Court's Decision No. 137/PUU-XIII/2015 regarding the examination of several articles in Law no. 23 of 2014 concerning Regional Government, namely Article 251 paragraph (2), (3), (4), and (8). Based on the Constitutional Court's decision, the judicial review and cancellation of regional regulations is the authority of the Supreme Court.

Another article, namely Article 170 of the Job Creation Bill which stipulates that a Government Regulation (PP) can be used to amend laws (UU) also violates the constitution, particularly Article 7 paragraphs (1) and (2) of Law no. 12 of 2011 which states that the PP has a lower position than the Law, so that the PP cannot cancel or change the Law. Furthermore, Article 170 of the Job Creation Bill also contradicts Article 20 paragraph (1) of the 1945 Constitution by ostensibly “shifting” the authority to make laws from the DPR to the President. Imparsial considers that there are still many other problems in the Job Creation Bill (Omnibus Law) that have the potential to violate the constitutional rights of citizens, workers, farmers, indigenous peoples, and have a negative impact on the environment.

On this basis, IMPARSIAL rejected the continued discussion of the Job Creation Bill (Omnibus Law) in the DPR, especially since the discussion was conducted in an unusual manner, namely in the midst of a recess for members of the DPR RI. This has further strengthened civil society's suspicions that the bill was deliberately concealed from public participation, input, or criticism.

Jakarta, July 22nd, 2020

Imparsial

Ardi Manto Adiputra (0812-6194-4069)
Gufron Mabruri (0812-1334-0612)
Hussein Ahmad (0812-5966-8926)
Al Araf (0813-8169-4847)

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