JRSSEM 2023, Vol. 02, No. 8, 1812 – 1817

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI: 10.59141/jrssem.v2i08.391 https://jrssem.publikasiindonesia.id/index.php/jrssem

THE LEGAL FORCE OF THE JOB CREATION LAW IN

CONDITIONAL UNCONSTITUTIONAL STATUS AFTER THE

CONSTITUTIONAL COURT DECISION

Christabella Gunawan

University of 17 August (UNTAG) Semarang, Indonesia

e-mail: christabellagunawan@gmail.com

*Correspondence: christabellagunawan@gmail.com

Submitted

: February 26

2023

Revised

: March 15

2023

Accepted

: March 25

2023

Abstract: The Job Creation Law is not only referred to as a law that has gone viral in various circles

since it was enacted in 2020, but it also seems that the Job Creation Law continues to be a major

star in the world of the Plenary State arena. Various kinds of arguments, assumptions, pros, and

cons emerged and during the ratification, demonstrations were inevitable. The research uses

normative legal methods related to literature studies and the latest news data with a philosophical

approach or ideal values. The conclusion is that the Job Creation Law is still valid and has legal force

even if it is stated to be formally flawed, where material defects are a certainty. The binding legal

force of the Job Creation Law lasted for two years and there was no update on the implementation

of the Job Creation Law.

Keywords: Law; Job Creation Law; Unconstitutional Status; Constitutional Court.

Christabella Gunawan | 1813

INTRODUCTION

According to the Constitutional Court

(MK) if the benchmark for formal testing

must always be based on the articles of the

1945 Constitution alone, then it is almost

certain that there will never be formal

testing because the 1945 Constitution only

contains principles and does not regulate

the formal aspects. The Job Creation Law is

not only referred to as a law that has gone

viral in various circles since its passage in

2020, the Job Creation Law continues to be

the main star in the world of this Plenary

State competition. All sorts of arguments,

assumptions, pros, and cons have sprung

up and at the time of its ratification, the

demo was inevitable. Academics began

researching the more than 1000-page law

and observed and considered it for

implementation and basic investment

references (Soebagyo, 2021).

Lawsuits were filed by various groups

and parties, one of which was the workers'

party to the Constitutional Court (MK).

Repulsion after repulsion was received with

a reply that was quite difficult to make a

decision. And the answer finally got a

response that gave a glimmer of light. The

labor lawsuit was granted even though not

all complaints were accepted, but the Job

Creation Law was declared defective and

had to be corrected for two years and its

status was conditionally unconstitutional.

A law is formed based on many

considerations, if it is certain that the Job

Creation Law will have problems, what are

the underlying reasons that the Job

Creation Law is still passed? The news

speaks eloquently that the Job Creation

Law was born to anticipate the economic

problems faced by the Indonesian nation

when experiencing the Covid-19 pandemic

and is President Jokowi's policy to improve

the nation's economy. But does the law,

which is often referred to as the Omnibus

Law, also represent the voice of the people

when the Covid-19 pandemic hits? Various

kinds of lawsuits were filed, many

considerations were granted and rejected,

then the lawsuit was received because of

formal defects, even though the basis for

making laws in Law No. 12 of 2011

concerning the Establishment of Laws and

Regulations (P3 Law), the Job Creation Law

was not legally flawed. What is the Job

Creation Law's authority and power when

declared unconstitutional but conditional?

Thus this paper seeks to dissect simply from

the side of the philosophy of science.

MATERIALS AND METHODS

This paper is made using normative

legal research methods related to the study

of literature and the latest news data with a

philosophical approach or ideal values.

RESULTS AND DISCUSSION

Das sollen from the formation

of the

Job Creation Law is from the idea of Mr.

President Jokowi to use the omnibus law

method in simplifying the formation of law

with the ultimate goal of improving the

welfare of the people that is fulfilled.

Increase investment in Indonesia and

attract as many investors as possible to

come in droves, create jobs for the people,

and not cut off the people's economy in the

midst of one of the brilliant thoughts and

strategies during the Covid-19 pandemic to

1814 | The Legal Force of The Job Creation Law In Conditional Unconstitutional Status After The

Constitutional Court Decision

make a difference. What is the process of

drafting the OMNIBUS LAW, which

according to data shows that in less than a

year, a law that changes many articles can

be born?

Unconstitutional according to the KBBI

is not based on the constitution or the

constitution; Contrary to (violating) the

Constitution. Where this is of course when

talking about what the Basic Law means

from the preamble, torso, and all the

articles in the 1945 NRI Constitution. But

what is said to be unconstitutional here is

that the process and its Law remain

constitutional and in force. The stages for

forming a law according to Law No. 12 of

2011 are (Tamin, 2021):

1. Planning

Planning is the stage where the DPR

and the President (as well as the DPD

related to a particular bill) compile a list of

bills that will be compiled in the future. This

process is known as the preparation of the

National Legislation Program (Prolegnas).

The House of Representatives of the

Republic of Indonesia (DPR RI) has

determined the Job Creation Bill as a

Priority Prolegnas for 2020 at the Plenary

Meeting on January 22, 2020. Then on

February 7, 2020, with Presidential Letter

Number: R-06 / Pres / 02/2020, the Job

Creation Bill was conveyed to the House of

Representatives of the Republic of

Indonesia.

2. Drafting

The preparation of the bill is the

preparation of draft regulations article by

article by following the provisions in

appendix II of Law No. 12 of 2011 which

was discussed jointly between the DPR RI

and the government. This joint discussion

has the following functions:

1. Ensure that the bill drafted is in line

with:

a. Pancasila, the 1945 NRI

Constitution, and other laws

b. Techniques for drafting laws and

regulations

2. Produce an agreement on the

substance provided for in the Bill.

The Job Creation Law, absorbs public

consultations, public dialogues, and various

public discussions in various academic

circles.

3. Discussion

The discussion of the bill material

between the House of Representatives and

the President was held at two levels of

discussion, namely the commission

meeting and the plenary meeting. Where

there are always criticisms, opinions, and

input from each question and answer from

the DPR, the President, and the DPO on a

particular topic.

4. Attestation or assignment

Where after the approval between the

House of Representatives and the

President, the bill can be passed with the

signature of the President or if for a

maximum of 30 days, the President's

signature has not been signed, the bill

officially becomes a law and is immediately

processed by the Secretary of State.

5. Promulgation

By Law No. 12 of 2011 Article 1 (12)

where the Promulgation is the placement of

laws and regulations in the State Gazette of

the Republic of Indonesia, Supplement to

the State Gazette of the Republic of

Indonesia, State Gazette of the Republic of

Indonesia, Supplement to the State Gazette

of the Republic of Indonesia, Regional

Christabella Gunawan | 1815

Gazette, Supplement to the Regional

Gazette, or Regional News.

The Job Creation Law was sentenced to

formal defects, but according to data

provided by the Coordinating Ministry for

Economic Affairs of the Republic of

Indonesia on the website:

https://maritim.go.id/tahapanpenyusunan-

uu-cipta-kerja/, this Omnibus Law obeys

the procedure for promulgating a law.

Meanwhile, the reason why the

Constitutional Court has ruled that the Job

Creation Law is flawed is that there was one

argument by the applicant who protested

about this OMNIBUS LAW, which the

Constitutional Court considered related to

the uncertainty of whether the Job Creation

Law was in the form of a new law, a change

law, or a repeal law. The Panel of Judges

said that the biggest substance of the Job

Creation Law was changed to several laws.

There are at least 77 amendment laws and

1 amended repeal law in the Job Creation

Law. Where according to Law No. 12 of

2011, neither the amendment law nor the

repeal law must be accompanied by the

words 'change' and 'repeal'. This is what is

not in the title of the Job Creation Law so it

is considered not to meet the standard

standards (Pratama, 2021).

Because there is no longer a basis for

closing various protests, the Constitutional

Court seeks to balance various interests by

adhering to structural functionalism and

making the Job Creation Law flawed by the

1945 NRI Constitution. Even if the

benchmark in the articles of the 1945 NRI

Constitution Article 22 A then there will be

no formal testing because the 1945 NRI

Constitution contains only principles and

there is no clear regulation in terms of

formal and procedural aspects.

2. A law has binding legal force from

the moment it is promulgated. However,

some provisions can be implemented

immediately, but some require

implementing regulations. The legal force

of the Job Creation Law as long as its status

is conditionally unconstitutional after the

Constitutional Court decision can still be

carried out by what is written in the Job

Creation Law because what is declared

defective is the process that must be

corrected for two years within the time

stipulated by the Constitutional Court.

The job creation law in its legal force

remains constitutional and applicable and

only the process where it is referred to

formally is unconstitutional. To avoid a

greater impact, both the progress of the

Job Creation Law and protests from the

public, the implementation of the Job

Creation Law was overcome for a period of

two years. All strategies and far-reaching

implementations and the establishment of

new implementing regulations are not

allowed to be carried out during the 2 (two)

year grace period. This is of course contrary

to what was conveyed by the Legal Tribunal

in the Main Case submitted by the

Constitutional Court where if the Law is

contrary to the 1945 NRI Constitution, the

Law does not have binding legal force.

From the above, it can be known if a

formal defect is possible for a material

defect to exist in this Job Creation Law. The

legal facts of the procedure for the

establishment of Law No. 11 of 2020 are:

- does not meet the principle of clarity

and clarity of formulation

- The Provision of Space for the

Participation of the Community is Not

1816 | The Legal Force of The Job Creation Law In Conditional Unconstitutional Status After The

Constitutional Court Decision

Optimal

- academic manuscripts and the Job

Creation Bill cannot be easily accessed by

the public

- not based on definitive, standard, and

standard ways and methods and

systematics of law formation.

- provisions of the norms of the article

that disappeared and replaced

From the above legal facts, if the process of

making a law is problematic, the content

and content of the law, both the provisions

and the flexibility, must be problematic.

However, by being declared conditionally

unconstitutional, the Job Creation Law has

legal force with binding but conditional

force where if no improvement is made

within two years of the Constitutional

Court's decision is pronounced, this Job

Creation Law becomes permanently

unconstitutional

CONCLUSIONS

The conclusion is that the Job Creation

Law is still valid and has legal force even if

it is declared a formal defect, which is a

material defect and is also a certainty. The

binding legal force of the Job Creation Law

lasts for two years and there is no renewal

of the implementation of the Job Creation

Law. This is given time to bind and suspend

the legal force of the Job Creation Law not

only under the supervision of the

Constitutional Court for the acceptance of

this JR, but to contain the chaos in the

Indonesian economy where the Job

Creation Law also changes the Articles on

manpower, land, investment, and so on as

the main jockey in national development.

And the formal defects of the Job Creation

Law are due to the unease of Government

Institutions and the rush to follow up on a

problem that has resulted in a domino

effect in the Indonesian nation.

REFERENCES

Asy'ari, Syukro, et al, "Model and

Implementation of Constitutional

Court Decisions in Law Testing

(Study of Decisions 2003-2012),

Registrar and Secretariat General of

the Constitutional Court of the

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Florida State University, "What Is

Philosophy?",

https://philosophy.fsu.edu/undergr

aduate-study/why-

philosophy/What-is-Philosophy,

accessed December 11, 2021.

Ghoffar, AB. "Konstitusi dan

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Christabella Gunawan | 1817

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(https://creativecommons.org/licenses/by-sa/4.0/).