UNS — The Constitutional Court (MK) RI announced the result of their judicial review on Law (UU) Number 11 of 2020 on Cipta Kerja (Ciptaker). In the announcement on Thursday (25/11/2021), MK partially granted the formal test request for the first time since established.
The board of juries led by the Chairman of MK RI, Anwar Usman, ruled that UU Ciptaker is a formal defect rendering it conditionally unconstitutional. This ruling was announced in the presence of the plaintiffs, Migrant CARE, Badan Koordinasi Kerapatan Adat Nagari Sumatera Barat (Coordinating Agency for Traditional Law West Sumatera), Mahkamah Adat Minangkabau (Minangkabau Traditional Court), and Muchtar Said.
“Ruled that UU Ciptaker contradicts the 1945 Constitution and has no binding legal power conditional as long as it is not interpreted as ‘no repairs have been made within two years since this decision was pronounced.’ Ruled that UU Ciptaker continues to be valid until appropriate improvement on the legal formation is made under the mentioned time period as regulated in this ruling,” Anwar Usman read.
After the announcement, people started to share their standing over the matter, some supporting, but not a few, disagreeing. People who oppose the law define the ruling without fully understanding the definition of the formal defect and conditional unconstitutional referred to by the MK. To provide clear definition of the terms and the true legal definition of the ruling, uns.ac.id contacted the Constitutional Law (HTN) Expert of the Faculty of Law (FH) Universitas Sebelas Maret (UNS) Surakarta, Dr. Agus Riewanto.
Dr. Agus Riewanto explained that the lawmaking process of UU Ciptaker is unconstitutional because it did not follow the process regulated in UU No. 11/ 2012 on Lawmaking Process as amended into UU No. 15/ 2019 because the previous UU did not mention omnibus law technique as applied in UU Ciptakerja lawmaking process. The evidence of a formal defect in UU Ciptaker is also observed from the argument submitted by the plaintiffs, which Dr. Agus Riewanto considers as simple to be proved in court.
“The MK ruling that accepts the formal assessment is the first in the history of formal assessment in Indonesia because usually, MK denied the request. MK usually only grants material assessment to assess the contents or the norm of an article, paragraph, or part of a paragraph of the UU considered to contradict the constitution (UUD 1945) or unconstitutional,” Dr. Agus Riewanto stated on Monday (29/11/2021).
Dr. Agus Riewanto stated that after the ruling, it is common that the material contents of law are canceled because of the unconstitutional lawmaking process. However, considering the ruling and the dissenting opinion from four out of nine judges, it is likely that the decision was taken as a middle ground because the ruling differentiated between the process and its result. Therefore, although the process was unconstitutional, the resulting regulation stays constitutional and effective. The decision also did not cancel the resulting law and rendered it invalid.
Dr. Agus Riewanto explained that this decision actually delays the enactment of the decision (limited constitutional) that provides room for transition for regulations that contradict the constitution to remain valid and maintain its legal power until a certain time period. The ruling is final and binding. “Therefore, if the government-DPR failed to fix the formal defect, UU Ciptaker will automatically render invalid permanently,” he said.
To prevent more issues regarding law enactment that contradict the constitution, Dr. Agus Riewanto suggested that the government improve the legislation process promptly. For example, by including the Omnibus Law procedure, reinsert UU Ciptaker into the national legislation program (prolegnas), and strengthens public participation by involving all legal addresses of UU Ciptaker.
“And an in-depth study that involves legal experts in universities no later than two years to ensure that UU Ciptaker will not become unconstitutional because it contradicts UU No. 11 of 2011 concerning Lawmaking Process,” he concluded. Humas UNS
Reporter: Y.C.A. Sanjaya
Editor: Dwi Hastuti