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.

Given that the law is the result of compromise and strategies, it results in constant tensions between normative demands, as regulated in the constitution, and economic mandates. Therefore, the constitutional mandate as the foundation in a constitutional democracy will also depend on political-economic rationality where economic efficiency becomes its core issue, as noted by B. Herry Priyono in 2014.

Because of the constant tension between the constitutional mandate and economic demands, the role of the court as a guarantor is crucial as well as strategic in providing decisions, guidelines or methods to bridge these constant tensions. As a judicial institution within the scope of the judicialization of politics then, the court is encouraged to deny the political question doctrine.

The court is, however, still a political institution, where the judges are also political actors. Therefore, the resulting decision is not formed in a vacuum, but it reflects beliefs and political, social and economic struggles.

Key considerations and strategic decisions by the judges are also found in the court’s decision. In terms of strategic considerations, the judges decided to maintain the Job Creation Law considering the beneficial aspects of its implementation for the public. Therefore, although the law has significant procedural violations, the jobs law was not declared unconstitutional permanently.

From these strategic considerations, the judges reached a compromise based on considerations of pragmatism and legalism. In this context, the considerations attempt to resolve different interests based on pragmatism, namely, the benefits obtained if the Job Creation Law is maintained, and the legalism aspect where the law is an autonomous dimension, and its normative demands must be obeyed.

The Constitutional Court's decision contains four key messages. First, the government and the House are given two years to revise the Job Creation Law and the status of the Job Creation Law remains in effect within that period. This reflects the psychological considerations of the business sector, allowing the government to control the uncertainty of the business climate.

Second, there is the suspension of strategic policies implementation and the court’s order to stop the issuance of implementing regulations. Third, the omnibus method contradicts the principles of certainty and standards as regulated in Law No. 12/2011, however, the omnibus method can still be adopted if Law No. 12/2011 is amended. Lastly, public consultation and participation are crucial in the revision process of the Job Creation Law.

From these four key messages, the government and the House are encouraged to work quickly and properly so that legal certainty for the business world can be guaranteed. Moreover, political consolidation between supporting political parties should be carried out immediately to maintain political credibility.

In closing, it is necessary for the government and the House to work on the law revision based on creative fidelity, where creativity rests on fidelity to the predetermined normative demands. Thus, it is possible to simultaneously revise Law No.12/2011 first and continue to revise the Job Creation Law. The necessary prerequisites are public communication and political maneuvering within the limits of the applicable law.

However, the key message for policymakers is to pay attention to the details in each stage of the law-making process. Aligning with the quote from Richard Branson, founder of Virgin, "If you place the emphasis on getting the little things right, and address the everyday problems that come up, you can encourage a culture of attention to detail”.

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The writer is a researcher at the Politics and Social Change Department, the Centre for Strategic and International Studies (CSIS) Jakarta.