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Questioning the Perppu of the Job Creation Law [1]

“So, why is it perppu, we look normal, but are being peeked at by the threat of global uncertainty….” That was President Joko Widodo’s reason for issuing Government Regulation in Lieu of Law (Perppu) No. 2/2022 concerning Job Creation, last December.

Various groups of civil society also considered, and environmental organizations, Perppu as “disobey against the constitution” because it opposed the decision of the Constitutional Court which annulled and declared Law No. 11/2020 concerning Job Creation to be formally flawed or conditionally unconstitutional.

The Constitutional Court firmly stated that the Job Creation Law is contrary to the 1945 Constitution and has no conditionally binding legal force. The government should improve the original omnibus law product within two years of the decision.

On the pretext of urgency, legal vacuum and efforts to provide legal certainty, this Perppu is issued.

Puspa Dewi, Head of the National Walhi’s Anti-Extractive Industry Campaign Division, said that there was no emergency situation as an argument for issuing the Job Creation Perppu. To be precise, this replacement regulation does not meet the requirements of “a pressing emergency” or a “state of danger.”

This Perppu, he said , seemed to be a shortcut for the government to outsmart the Constitutional Court’s decision and avoid massive rejection of this omnibus law .

Muhammad Jamil, Head of the National Legal Division of the Mining Advocacy Network (Jatam), said this Perppu shows the character of the regime’s power which is controlled by businessmen and is indifferent to the wave of people’s rejection.

“The regime is quite adept at exploiting political power for business interests. On the other hand, systematically narrowing the space for citizens to defend their right to their living space,” he said.

From Jatam’s scrutiny and analysis, the Perppu is just a populist slogan to overcome the threat of crisis, create jobs, and make it appear as if the government is making improvements even though it has been declared conditionally unconstitutional.

In this Perppu, it is the same as the Job Creation Law, such as centralizing licensing to the central government and maintaining cunning tactics to conquer space through national strategic projects (PSN), industrial areas, national strategic areas and special economic zones.

Whose interests ?

Asep Komaruddin, Campaigner for Greenpeace Indonesia, suspects that there is political interest in the business sector that destroys the environment and investments based on extractive industries that are greedy for land behind the issuance of this Perppu.

Judging from several articles in the Job Creation Perppu it is a duplication of the Job Creation Law. In other words, he said, there was no significant change in the replacement regulation.

He mentioned, in Article 128A of the Job Creation Perppu, the government also gives a 0% royalty to holders of coal mining business permits (IUP) or special mining business permits (IUPK) who carry out downstreaming.

“This regulation will not only reduce state revenues in a significant amount, it will also potentially hamper efforts to transition to clean and renewable energy,” said Asep.

Giving a royalty of 0% can also encourage mining companies to be busy doing downstream, thus risking extending the life of the dirty energy consumption.

Jamil said that in the coal mining sector, the imposition of a royalty of 0% in the Job Creation Law is even stronger in the Perppu by adding the words IUP and IUPK.

“Of the 11 mining companies that are committed to downstream coal, seven are for coal gasification projects with d- dimethyl ether and methanol end products.”

The seven companies named include PT Bukit Asam Tbk (PTBA), PT Kaltim Prima Coal (KPC), PT Kaltim Nusantara Coal, PT Arutmin Indonesia, PT Kendilo Coal Indonesia, PT Adaro Indonesia, PT Berau Coal.

“The gasification project of the seven companies is estimated to require a coal supply of 19.17 million tonnes annually.”

On the other hand, the Perppu also provides space for corporations to mine in the deep sea and are permitted to dump. This clause, he said, provides convenience for mining corporations that are submitting a deep sea tailing placement (DSTP) project in Morowali waters, Central Sulawesi and Obi Island, North Maluku.

There is also a section in the Perppu regarding all permits related to nuclear power being taken over by the central government. Jatam said that this Perppu paved the way for a government that insists on developing nuclear energy generators.

Then Article 41 of the Perppu changed Article 5 of the Geothermal Law, instead perpetuating encroachment on protected forest areas, conservation forests, conservation areas in waters and sea areas of more than 12 miles.

There are also articles that open up criminalization for the people, for example, in the mineral and coal sector, people who defend their living space are subject to a one-year fine of Rp. 100 million.

The same is true in the geothermal sector, which threatens citizens with sanctions from one year to seven years, a fine of IDR 100 million to IDR 700 million.

Asep said, there are “bleaching” articles such as Article 110A in the Job Creation Law and Perppu which do not provide criminal sanctions for business actors in forest areas who do not have permits and have been operating since before the regulations came into effect.

Puspa said that it was these environmental articles in the Perppu that had the risk of worsening the quality of the environment, accelerating the seizure of space, and the confiscation of people’s management areas.

“As well as narrowing the space for people’s participation in determining good and healthy environmental conditions.”

Maria SW Sumardjono, Professor of the Faculty of Law at Gadjah Mada University, said that the Constitutional Court’s decision is final and binding. It is final because the decision immediately gains permanent legal force from the moment it is pronounced and there are no legal remedies that can be taken. The binding nature of the decision, he said, does not only apply to the parties, but to all Indonesian people.

Formally, the Job Creation Law which was ratified and promulgated in the state gazette, said Maria, still exists because it was not repealed, but is no longer valid, including the implementing regulations.

Asep is of the opinion that the Constitutional Court’s decision requires improvements in the material content of the Job Creation Law and must involve public participation. With the Perppu, the president revoked the Job Creation Law on the grounds that the crisis was forced.

Jamil also said that the reason for global threats was nonsense.

He suspects that this Perppu is an act of providing legal guarantees for the security and sustainability of business investments before ending political power in early 2024.

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