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Viewing jobs law and Perppu through the lens of freedom of association
Consultation cannot be simply ignored as it is the very foundation that needs to be preserved should Indonesia wants to keep its democracy.
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A protester burns a draft of the Job Creation Law in Jakarta on Oct. 27, 2020 as a symbol of rejection of the controversial law. JP/Seto Wardhana (JP/Seto Wardhana)
On Nov. 25, 2021, the Constitutional Court declared Law No. 11/2020 on job creation conditionally unconstitutional. In its verdict, the court said that although the law would remain in effect temporarily, the government must remedy the procedural flaws of the law within two years, or else.
The law, since its initial draft, has created a public uproar and ignited legal controversy in the public sphere in particular with regard to its labor-related issues, such as types of employment contract, social security as well as issues related to labor migration including on how the placement of Indonesian migrant fishers would be regulated amid the challenge of coordinating the role of various ministries.
In its legal considerations, the court explained that, among others, the law failed to follow the principles of legislation, namely, clarity of purposes and openness. With regard to openness, the court stressed in its consideration the lawmakers did not give enough space for public participation during its deliberation despite the fact that there were meetings held to familiarize the draft of the law.
A year after that verdict, on Dec. 30, 2022, President Joko “Jokowi” Widodo suddenly signed the Regulation in Liew of Law (Perppu) No. 2/2022. As stated by Airlangga Hartarto, the coordinating economic minister, the regulation was prepared by the government to implement the Constitutional Court’s decision of Nov. 25, 2021.
The court’s verdict is definitely important to follow. And yet, as one of the member states of the International Labor Organization (ILO), which has ratified both ILO Convention No. 87 (1948) on Freedom of Association and Protection of the Right to Organize and ILO Convention No. 98 (1949) on the Rights to Organize and Collective Bargaining, it is equally important to review the importance of the openness, public participation or the “consultation” phase in the ILO term.
This can be done by referring to the available and relevant international labor standards with regard to freedom of association. The exercise will help Indonesia get an additional authoritative perspective to determine if the issuance of the Perppu is a proper implementation of the Court’s verdict.
