in a nutshell
The government has started the process of “redoing” Law No. 11 of 2020 on Job Creation (“Law No. 11 of 2020Mandated by the Constitutional Court on November 25, 2021, also known as the Omnibus Law, issued amendments to the law governing the legislative process to accommodate the Omnibus Law method used in this law. The government should engage the public in a meaningful way when discussing the content of the law to replace Law No. 11 of 2020, while completing the entire process by the deadline of 25 November 2023. Meanwhile, the amendment itself remains subject to constitutional challenge.
content
- Decision of the Constitutional Court
- In detail
- what’s ahead
On 25 November 2021, the Constitutional Court ruled that the process of Law No. 11 of 2020 is conditionally unconstitutional because it is contrary to the principles of good law (7 December 2021). daily client alerts). This status is subject to the condition that the government must remedy procedural deficiencies within two years of him. Once this is done, the law, or whatever its subsequent incarnation, becomes constitutional.
To remedy the procedural deficiencies of Law No. 11 of 2020, the Constitutional Court has ordered the following steps: beginninggovernments must promulgate laws on how to draft omnibus laws in compliance with good legislative principles. number two, Law No. 11 of 2020 must be amended to meet these principles, in particular the principle of disclosure. This requires more meaningful public participation. Essentially, the government will have to redo the legislative process that led to the issuance of Law No. 11 of 2020.
If the Government does not take the above remedies, the unconstitutionality of Law No. 11 of 2020 will become permanent and all existing laws amended or replaced by the Government will again apply. The legal regime will return to what was in force before the promulgation of Law No. 11 of 2020.
As mentioned above, the Constitutional Court has specified that its decision is limited to the formal aspects of Law No. 11 of 2020. We have not made any decisions about the content of this law.
Legislative process and legal issues to date
On 13 June 2022, the Government promulgated Law No. 13 Year 2022 on Second Amendment to Law No. 12 Year 2011 (Law No. 13 Year 2022) on Making Laws and Regulations. The purpose of this amendment is to address the Constitutional Court’s objections to the legislative process used to prepare Law No. 11 of 2020. Law No. 13 Year 2020 designated this method for the first time in 2022 to deal with the Constitutional Court’s objection that the method of making a comprehensive law is confusing. To address the Court’s objection that the language of Law No. 11 of 2020 was changed after it had been agreed to by the House of Representatives, this amendment would make changes after the language was agreed to by the House of Representatives. It states that it can be done. It was agreed in the plenary to correct the technical error. To address the court’s findings that meaningful public participation was lacking in the enactment of Law No. 11 of 2020, the amendment aims to introduce measures to enhance public participation. is. The amendment emphasized the right of the public to be heard, to seek clarification and to have opinions considered during the legislative process.
With the promulgation of Law No. 13 of 2022, the government fulfilled the first requirement set by the Constitutional Court that it must promulgate a law on how to draft a comprehensive law in accordance with the principles of good legislation. I was. The next step is to restart the legislative process in the House.
Since Law No. 13 of 2022 itself was promulgated, it has been subject to legal challenges in court. The Indonesian Labor Party has filed a petition claiming that the law itself was passed without meaningful public participation. It was claimed that the legislation was considered and completed in just one week without public comment, as the government and the House rushed through the legislative process. It has also been argued that the amendments introduced by the law are only ex post justifications for mistakes made during the drafting of Law No. 11 of 2020. However, the Constitutional Court ruled that the petition was technically inadequate and dismissed it. Consider its essence. Labor he filed an amended petition on 26 July. On August 1, 2022, another petition was filed by other workers and human rights activist groups, alleging broadly the same issues.
It will be interesting to monitor the progress of these petitions. If they succeed, the government could suffer serious setbacks in its efforts to redo the drafting of Law No. 11 of 2020, assuming all petitioners’ claims were accepted by the Constitutional Court. Omnibus method this time. Given the breadth and scope of Law No. 11 of 2020, this is the only viable way to reproduce the content of this law in a new form. If the Constitutional Court rules against the introduction of this method by his Law No. 13 of 2022, the government will have to resort to other conventional methods that are much more complicated and cumbersome.
The government remains optimistic about the prospects of the effort to redo the drafting of Law No. 11 of 2020. This means that the Government and the House of Commons will consider the content of the new implementation of Law No. 11 of 2020 this month, and as soon as the House of Commons resumes its session on the 16th of August 2022, in accordance with tradition. , one day before him on Independence Day.
Aside from the potential confusion arising from ongoing constitutional challenges to Law No. 13 of 2022, what can the Government and the House do differently than last time to address concerns about meaningful public participation? I don’t know yet. Also, at the moment there is no strong request to reconsider the content of Law No. 11 of 2020, but we cannot rule out the possibility that the content will be revised in the next stage. I will stop further objections and protest this law.
Businesses are strongly advised to consider the possible future implications of the November 2021 Constitutional Court ruling. The redoing of the making of Law No. 11 may still fail or involve significant changes to this law. Such impacts may not be the same for all companies, but some provisions of Law No. 11 of 2020 apply to all sectors, such as those relating to labor regulations, fair competition, and licensing in general. It is worth pointing out that it affects If the process of redoing the law fails, the previous law will come into force again in November 2023. When significant amendments are made, the impact of those amendments should be assessed.
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