The Constitutional Court Decision the Job Creation Act No. 11 of 2020 Judicial Review- Could it Create a Precendent of Conditionality in Future Judicial Review Decisions?

On November 25, 2021, the Constitutional Court decided the case before the Court concerning the Job Creation Act No. 11 of 2021, in particular of the Employment cluster. This decision was pronounced at 13.17 WIB, by nine Constitutional Justices namely Anwar Usman as Chairman and Member, Aswanto, Wahiduddin Adams, Suhartoyo, Enny Nurbaningsih, Saldi Isra, Arief Hidayat, Manahan M.P. Sitompul, and Daniel Yusmic P. Foekh, respectively as Members. The Constitutional Court’s decision was taken based on the concuring opinions of five judges with four dissenting opinions from Constitutional Justice Arief Hidayat, Constitutional Justice Anwar Usman, Constitutional Justice Manahan M.P. Sitompul, and Constitutional Justice Daniel Yusmic P. Foekh.

In the Principal Application, the Constitutional Court decided:

  1. To declare that the applications of Petitioner I and Petitioner II cannot be accepted;
  2. Granting the application of Petitioner III, Petitioner IV, Petitioner V, and Petitioner VI in part;
  3. To declare that the establishment of Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia of 2020 Number 245, Supplement to the State Gazette of the Republic of Indonesia Number 6573) is contrary to the 1945 Constitution of the Republic of Indonesia and has no legally binding force. Conditional as long as it is not interpreted as “no correction is made within 2 (two) years since this decision is pronounced”;
  4. To declare that Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia of 2020 Number 245, Supplement to the State Gazette of the Republic of Indonesia Number 6573) is still valid until corrections are made to the establishment per the grace period as determined in this decision;
  5. Order the legislators to make improvements within a maximum period of 2 (two) years since this decision is pronounced, and if within that time limit no corrections are made, then Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia Year 2020 Number 245, Supplement to the State Gazette of the Republic of Indonesia Number 6573) becomes permanently unconstitutional;
  6. To state that if within 2 (two) years the legislators cannot complete the revision of Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia of 2020 Number 245, Supplement to the State Gazette of the Republic of Indonesia Number 6573) then the Act – Laws or articles or material content of regulations that have been revoked or amended by Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia of 2020 Number 245, Supplement to the State Gazette of the Republic of Indonesia Number 6573) are declared to be re-applicable;
  7. Declare to suspend all strategic and broad-impact actions/policies, and it is also not permissible to issue new implementing regulations relating to Act No. 11 of 2020 concerning Job Creation (State Gazette of the Republic of Indonesia of 2020 Number 245, Supplement to the State Gazette Republic of Indonesia Number 6573);
  8. Ordering this decision to be published in the State Gazette of the Republic of Indonesia as appropriate;
  9. Reject the petition of the Petitioners for other than and the rest.

In short, the Constitutional Court ordered that Act No. 11 of 2020 remains in effect until improvements are made to the formation in accordance with the grace period as determined in this decision (maximum 2 years from the date of the Decision). The Constitutional Court also ordered the prohibition of issuing new implementing regulations or derivative regulations of Act No. 11 of 2020.

The Decision in question was eagerly awaited by numerous labor civil societies, trade unions, and scholars that asserted procedural and material injustice at the beginning of the formation of the Job Creation Act. The Decision, however, is widely critized as it puts a conditional order for a product of law of which the Court found contrary to the 1945 Constitution of the Republic of Indonesia and as such has no legally binding force. Further, administratively, for the Employment cluster, Act No. 13 of 2003 concerning Employement is still in effect – The Employment Cluster of Act No. 11 of 2020 only amend or omit some Articles of Act No. 13 of 2003. Judicisouly, the Court should not consider the time and efforts necessitate the Legislative Body (i.e the Goverment) to revise the Act No. 11 of 2020 in their Decision.

In criminal and contract laws, conditionality is not uncommon. Indonesia’s Criminal Code, for instance, recognizes conditional punishments, a system where judges impose criminal sentences that depend on specific situations or conditions. The conditionality principle is also not uncommon in judicial review decisions. However, the application of conditionality is typically used to narrow the construction of material decisions. In this recent Decision, however, conditionality is places on the applicability of Law in its entirety, although the Court found it non-binding.

The Constitutional Court reiterates enforcement of Law that the Court declared defective because it was asserted to be contrary to the 1945 Constitution of the Republic of Indonesia and thus unenforceable, merely on time-bound conditions. The Decision likely creates a precedent of operation of defective laws and regulations under the pretense of procedural challenges instead of the constitutionality of material laws. It also creates a legal pause or grace period where enforcement of unenforceable laws is acceptable in the eye of the Court with conditions that the Court sees fit. The principles of the material laws in this Decision appeared to take the second place.

Whether or not the recent Decision creates a precendent, the answer would be debatable in the realm of civil law system that does not recognize case law principle of precedent. The dissenting opinion of Judge Arief Hidayat and Judge Anwar Usman may provide a glimpse on what could happen in the future of judicial review in Indonesia:

Law does not only undergo evolutionary changes but, in its development, requires revolutionary changes, jumping from one method to another method that is more capable of adapting to the needs of society; such legal changes are often referred to as paradigmatic legal changes (paradigm-shift). The evolution eliminates changes in a logical and coherent order because it suddenly takes a new starting point and point of view that is different from what was previously used. Such a change is called rule-breaking, or it can also be known as a leap from the adoption of normal law to unusual law, which then returns to normal law with a new paradigm….

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