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Identifying Constitutional Court's strategic decision on Job Creation Law
The decision on the jobs law shows the role of the court in Indonesia's democratic ecosystem remains significant and relevant
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Nine justices of the Constitutional Court during a hearing session at the courtroom. (JP/Seto Wardhana)
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fter a long public discourse regarding the 2020 Job Creation Law, the Constitutional Court finally declared the law conditionally unconstitutional. The court ruling gives the government and the House of Representatives two years to revise the law in accordance with law-making procedures and wider public participation.
In its editorial on Nov. 29, 2021 “Law without credibility”, The Jakarta Post conveys a strong message to policymakers that goals cannot always justify the means. In other words, the law revision that will be carried out will have to ensure that it follows the right mechanism, including a proper public consultation.
Another Post article “Uncertainty looms after Job Creation Law declared unconstitutional (27 Nov, 2021), also explains how the Constitutional Court Decision No. 91 /PUU-XVIII/2020 reiterated the perception of significant legal uncertainty for investment in Indonesia. The court ordered the government to delay the implementation of any strategic policies related to the Job Creation Law that would have a broad impact. Moreover, the government can no longer issue technical regulations, which affects the implementation of special economic zones, the opening of new investment sectors and the sustainability of foreign investment, among others.
There are at least two lessons to be drawn from the court’s decision. First, the role of the Constitutional Court in Indonesia's democratic ecosystem is significant and relevant. In this case, if we adopt the approach of Mark Tushnet in 2014, the court’s response to the polemic of the Job Creation Law uses an insurance model approach, where the court is formed and equipped with a constitutional review function to guarantee constitutional protection for the parties to dispute.
In the formal review of the Job Creation Law, the court guarantees the protection of public interests, as it rules that the government has bypassed the proper legal procedures and public consultation during the law-making formation.
Second, the trend of dependence on the judicialization of politics where courts and judges are required to handle mega-political issues, as described by Ran Hirschl in 2010. In this context, the role of the court in handling the case shows the public's dependence on it and its judges in dealing with constitutional matters related to mega-political issues.
The phenomenon behind the position and attitude of the Constitutional Court in relation to the insurance model and judicialization of politics is also worth observing. Firstly, the Job Creation Law is the result of a mega-political constellation, where the law is seen as a political compromise between the political elite and market players who want reforms in the economic sector, as well as a strategy for various parties to gain access to influencing national interests and resources.
