Last year was closed with the government’s controversial move to issue Government Regulation in Lieu of Law (Perppu) Number 2/2022 concerning Job Creation. The regulation that came out suddenly caused various reactions. Various groups of civil society organizations criticized the government and considered the Perppu as an attempt to escape from the decision of the Constitutional Court (MK) Number 91/PUU-XVII/2020 which declared Law Number 11/2020 concerning Job Creation unconstitutional.
On January 27 2023, the Constitutional Rights Defenders Committee (Kepal) also made a constitutional complaint with the issuance of this Job Creation Perppu. For Chief, the Job Creation Perppu is a form of violation of the Constitutional Court’s decision in the case of a formal review of the Job Creation Law. The Constitutional Court should have issued a fatwa.
On the official website of the Cabinet Secretariat , Coordinating Minister for Economic Affairs Airlangga Hartanto said this step was to anticipate global conditions, both related to the economy and geopolitics.
He said the decision of the Constitutional Court greatly influenced the behavior of the business world, both at home and abroad. In fact, the government seeks to attract investment as the key to economic growth.
Airlangga hopes that the existence of the Perppu can provide legal certainty, including for business actors. “It is hoped that the issuance of the Perppu can provide legal certainty and become the implementation of the Constitutional Court’s decision,” he said.
“The violation had fatal consequences, because the Constitutional Court’s decision clearly stated, the Job Creation Law must be amended within two years. However, the government is looking for a shortcut by issuing a Job Creation Perpu,” said Janses E Sihaloho, Coordinator of the Kepal Legal Counsel Team in a press release.
The Indonesian Legal Aid Foundation (YLBHI) said that the issuance of the Perppu was a form of defiance, betrayal or coup against the constitution.
According to YLBHI, this Perppu is a form of government authoritarianism that does not want to discuss policies that have an impact on the life of the nation.
Raynaldo Sembiring, Executive Director of the Indonesian Center for Environmental Law (ICEL) , said that the Perppu undermines the government’s and DPR’s efforts to implement Constitutional Court rules. “The government is inconsistent in understanding and implementing the Constitutional Court’s decision,” said Dodo, his nickname.
The government and DPR, he said, had implemented several Constitutional Court decisions. On the other hand, there are also violations.
The inconsistency can be seen from the government’s reason for issuing a Perppu as part of preventing economic conditions that are predicted to get more difficult.
So far, the government has always built arguments that Indonesia is fine from the threat of an economic recession and will not become a potential patient of the International Monetary Fund (IMF).
“Now everything is reversed by the government,” said Dodo.
The culmination of civil society’s response came in the form of an ultimatum for the president to revoke and the DPR to reject the Perppu. More than 200 civil society organizations are members of the People’s Joint Labor Movement (Gebrak), the National Committee for Agrarian Reform (KNPA), Kepal and the People’s Ultimatum Network.
An ultimatum was issued on January 10 but there was no response from the government or DPR.
Muhammad Isnur, General Chairperson of YLBHI said in a press conference that the government was not serious about responding to the mistakes they made through the Job Creation Law and the Constitutional Court ruling. There should be a reflection of the disappointment that has arisen in society.
“Public protests were ignored. We are getting further away from constitutional principles. The government became authoritarian.”
Muhammad Arman, Director of Legal and Human Rights Advocacy at the Archipelago Indigenous Peoples Alliance (AMAN) expressed the same opinion. The Perppu, he said, had sunk the legal certainty of indigenous peoples.
Since the beginning, he said, AMAN has expressed its attitude against the Job Creation Law. There is a Perppu, said Arman, which has increasingly shown their resistance to this government regime.
Violation of Constitutional Court decisions
Gunawan, a representative for Kepal, who is also a senior adviser to the Indonesian Human Rights Committee for Social Justice, said that this complaint also follows up on a constitutional complaint regarding a violation of a Constitutional Court decision.
On December 15, Kepal reported all government irregularities regarding the Job Creation Law to the Constitutional Court. Kepal even submitted evidence of violations as a form of constitutional complaint.
This mechanism has never existed before, but Kepal hopes that it will be taken seriously and the Constitutional Court will issue a position that could set a precedent.
“If the Constitutional Court can issue a conditional unconstitutional term which never existed before, then there should also be an exception for this unusual case,” said Jenses.
He also asked the Constitutional Court to issue a fatwa against their decision. This is to prevent multiple interpretations which will lead to the arbitrariness of the government which thinks that the Job Creation Law can still run while being revised.
In the complaint to the Constitutional Court, in the agrarian sector, the government’s insistence on establishing a land bank resulted in a constitutional violation after the Constitutional Court’s decision.
The idea of a land bank has actually been misguided from the start. “Because in principle land is a commodity. This is a constitutional violation,” said Dewi Kartika, Secretary General of the KPA in a public discussion on the release of the Monitoring Report on Violations of Constitutional Court Decisions in Cases of Formal Review of the Job Creation Law, in Jakarta, recently.
The government’s argument for establishing a land bank also needs to be criticized. Provision of difficult land is often cited as a barrier to development and investment.
In fact, the reality on the ground is quite the opposite. The government provides abundant privileges to investors. Land monopoly by the private sector and unilateral claims by the state are the basis for inequality in land ownership.
KPA records, 42,000 hectares of land in Jabodetabek are controlled by only 13 developers. “The situation is in contrast in that there are still many poor people in urban areas who do not have a place to live in or are homeless, being evicted due to the strong flow of construction and development of cities,” said Dewi.
Not to mention the inequality of land tenure for agriculture and industrial forest plantations. The government, he said, has shown its side with the company. The 2021 KPA data states that 68% of land in mainland Indonesia is controlled by 1% of business groups and large-scale corporate bodies.
“Land monopoly in the midst of inequality and agrarian conflict invalidates the arguments of land bank promoters. This argument is inconsequential,” said Dewi.
The Consortium for Agrarian Reform (KPA) as part of the Headquarters recorded three government violations in this regard.
First , Presidential Regulation Number 113/2021 was issued concerning the Structure and Administration of the Land Bank Agency. Second , the issuance of the 2021 Government Regulation concerning Land Bank Agency Capital.
Third , the Draft Presidential Regulation for the Acceleration of Agrarian Reform at the Coordinating Ministry for Economic Affairs which does not refer to Law Number 5/1960 concerning Basic Agrarian Regulations. This draft policy also refers to the Job Creation Law which was declared conditionally unconstitutional and has no permanent legal force.
Another violation, can be seen from the food import policy. The Indonesian Farmers Alliance notes that last year’s rice import measures still refer to the Job Creation Law.
“In UUCK it is not clear which indicators as a reference for imports can be used,” said Muhammad Nur Uddin, API Secretary General.
Meanwhile Law No. 18/2012 on Food, he said, explained indicators that imports could be carried out if domestic food production was insufficient and, or there was no domestic production. Import requirements are also omitted in the Job Creation Law.
That way, he said, it could mean that food sources could come from imports as long as they meet domestic needs. “It is not clear who has this power and authority. Is it the Minister of Agriculture or the Minister of Trade,” said Uddin.
Even imports, he said, were carried out haphazardly. Last year, for example, the government imported based on the conditions of Christmas and New Year’s Day and seasonal factors which were predicted to result in the country’s ability to provide less rice.
At the same time, the price of rice abroad is cheaper than domestic. Uddin said the price of medium quality rice in Thailand and Vietnam was IDR 9,000 per kilogram. The same quality domestically has touched IDR 10,000-IDR 11,000.
The government, he said, had to disburse funds of up to Rp4.4 trillion to import 500,000 tons of rice last year. “Like it or not, this becomes a political reason so that rice reserves can be supplied through imports,” said Uddin.
In fact, he said, 80% of small farmers in Indonesia are able to provide food for the people. The ability of farmers should not be underestimated, because they can produce 55 million tons of grain which can be processed into 30 million tons of rice.
Thus, he said, instead of spending large amounts of money on imports, it is better to subsidize rice consumers. Unfortunately, the government prefers the import option.
Fajar Laksono, Spokesman for the Constitutional Court, said that a constitutional complaint mechanism could be processed by the Constitutional Court, although there has never been one. The mechanism will be the same as the process for examining incoming lawsuits.
“Everything is the same. We will examine the documents and later the panel of constitutional judges will decide what their decision will be on this complaint.”