JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022 521

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Published by Postgraduate Program, Master of Laws, Faculty of Law, Universitas Negeri Semarang, Indonesia

VOLUME 3 ISSUE 4, OCTOBER 2022

Editor in Chief:

Assoc. Prof. Dr. Indah Sri Utari, S.H., M.Hum

Universitas Negeri Semarang, Indonesia

Associate Editors:
Prof. Ngboawaji Daniel Nte, Ph.D.

Novena University, Nigeria

Assoc. Prof. Frankie Young, Ph.D.
University of Ottawa, Canada

ISSN (Print): 2715-0941 ISSN (Online): 2715-0968

History of Article
Submitted: March 11, 2022
Revised: July 28, 2022
Accepted: August 28, 2022
Available Online since: October 31, 2022

How to cite:
Saputra, Danang Aji. “The Problem of the Constitutional
Court’s Decision in the Formal Test of the Job Creation
Law”. Journal of Law and Legal Reform 3, No. 4 (2022): 521-
542. https://doi.org/10.15294/jllr.v3i4.57699.

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NonCommercial-ShareAlike 4.0 International (CC BY-NC-SA
4.0). All writings published in this journal are personal views
of the authors and do not represent the views of this journal
and the author's affiliated institutions. This title has been
indexed by Science & Technology Index (SINTA 3), Directory
Open Access Journal, Google Scholar, and GARUDA

Type: Review Article

The Problem of the Constitutional Court's

Decision in the Formal Test of the Job

Creation Law

Danang Aji Saputra

Postgraduate Program, Master of Laws, Universitas Negeri

Semarang, Indonesia

The Budget Board of the Regional House of Representatives of

Batang Regency (Badan Anggaran DPRD Kab Batang)

 danangajisaputra@mail.unnes.ac.id

ABSTRACT

One year already after the enactment of Law Number 11 of 2020

concerning Job Creation which was declared conditionally

unconstitutional by the Constituency Court through Decision Number 91

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https://scholar.google.co.id/citations?hl=id&user=VNLMC58AAAAJ
https://indigenous.uwo.ca/faculty/frankie-young.html
https://indigenous.uwo.ca/faculty/frankie-young.html
http://issn.pdii.lipi.go.id/data/sk1572939820.pdf
http://issn.pdii.lipi.go.id/data/sk1572940693.pdf
https://doi.org/10.15294/jllr.v3i4.57699
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https://sinta.kemdikbud.go.id/journals/detail?id=8405
https://doaj.org/toc/2715-0968
https://doaj.org/toc/2715-0968
https://scholar.google.co.id/citations?hl=id&authuser=2&user=dQJNpKgAAAAJ
https://garuda.kemdikbud.go.id/journal/view/16931

522 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

© Author(s). This work is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.
Published by Postgraduate Program, Master of Laws, Faculty of Law, Universitas Negeri Semarang, Indonesia

/ PUU-XVIII / 2020. In the decision, it is stated that the Job Creation Law

contains formal defects in the process of its formation, so that the DPR and

the Government must make improvements in accordance with the

procedures for the formation of applicable laws and regulations, with a

maximum period of 2 years from the time the decision is read by the

Constitutional Court. From this writing, the author focuses on discussing

the Formal Test of the Job Creation Law After the Constitutional Court

Decision and the direction of improvements made by the government after

the Constitutional Court Decision on the Job Creation Law. In writing this

article, the author uses normative juridical research methods sourced from

books and also articles that are in accordance with the theme written. As a

result of this study, the author can describe the results of the formal testing

of the Job Creation Law which is connected with the Constitutional Court

Decision with The Science of Legislation, using a statutory approach and

using theories from the views of legal experts through a conceptual

approach that is carried out systematically and holistically.

Keywords: Job Creation, Formal Defects, Constitutional Court Decision

INTRODUCTION

The provisions of Article 1 paragraph (3) of the 1945 Constitution of the

Republic of Indonesia affirm that, "The State of Indonesia is a State of Law",

meaning that the consequence of understanding the state of law is the

existence of an obligation to fulfill the principle of legality. This principle

of legality means that all government actions must be based on valid and

written laws and regulations, so that the applicability of this Principle of

Legality is needed in laws and regulations. According to Bagir Manan,

explaining that the laws and regulations have internal and external

functions. This internal function becomes a subsystem in law that functions

in the creation of laws, carries out legal renewal, the integrity of legal

pluralism and guarantees legal certainty. In its external function, it is used

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JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022 523

as a link between laws and regulations and the place of enactment, namely

in the social function of law, the function of change, stability, and

convenience.1

In the laws and regulations that are the main instruments, namely the

Law which normatively regulates further arrangements regarding the

provisions of the 1945 Constitution of the Republic of Indonesia, the

existence of an order for an Act to be regulated in the Law, ratification of

international agreements, follow-up of a Constitutional Court Decision, or

the fulfillment of legal needs in society. An example of a case is the history

of the2 Marbury vs. Madison case in the United States, where in the ruling

there is a judicial review doctrine. Since the 1803 case until now, many

countries have had their own Constitutional Courts, including in

Indonesia. In Article 24 paragraph (2) of the Constitution of the Republic

of Indonesia of 1945 it is stated that: "Judicial power is exercised by a

Supreme Court and the judicial bodies subordinate to it in the general

judicial environment, the religious judicial environment, the military

judicial environment, the state administrative court environment, and by a

Constitutional Court". Based on the provisions of the Article of the

Constitution, there are two most important things, firstly, namely the

judicial institution, namely the Constitutional Court, and the second is

about Testing the Law against the Basic Law.3

The Constitutional Court has the authority to test the Law against the

1945 Constitution of the Republic of Indonesia, either in substance or

material content in the Law, in accordance with the procedure for the

formation of laws. In the perspective of legal formation in Indonesia, the

authority of the Constitutional Court is a negative legislation because it can

cancel provisions that are contrary to the 1945 Constitution of the Republic

1 Bayu Dwi Anggono. 2020. Pokok-Pokok Pemikiran Penataan Peraturan Perundang-

Undangan di Indonesia. Jakarta: Konpress, p. 14; Jazim Hamidi & Kemilau Mutik. 2011.

Legislatif Drafting. Yogyakarta: Total Media, hlm. 15.
2 Pasal 10 ayat (1) Undang-Undang Nomor 12 Tahun 2011 tentang Pembentukan

Peraturan Perundang-Undangan.
3 Jimly Asshiddiqie. 2006. Hukum Acara Pengujian Undang-Undang, Jakarta: Hukum

Acara Pengujian Undang-Undang, p. 50

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524 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

of Indonesia. The constitutional court's decision to overturn this norm

contrary to the Constitution is final and binding. Thus, this nature does not

determine any other legal remedies that can be pursued to correct the

decision of the Constitutional Court. As a follow-up to the decision,

namely positive legislation which is a power possessed by the DPR

together with the President.4 As a follow-up to the ruling is positive

legislation which is the power that the DPR has together with the

President. The problem that arises is that it turns out that the Constitutional

Court's decision did not directly receive a follow-up response by the DPR

to make amendments or adjustments to the results of the Constitutional

Court's decision. In practice or implementation, the DPR did not

immediately follow up on the Constitutional Court's decision, so the

execution of the Constitutional Court's decision was not easy. There are

two important factors that will influence the attitude of the DPR to conduct

legislative review, namely the first is related to the substance of the

controversial Constitutional Court ruling. The second is related to the

mechanism and system of submitting bills in the DPR which are planned

and integrated in the instruments of the national legislation program.

Indonesia has now reached the point where the law is an instrument

in national development, which has a very large role in determining the

direction of the development of the Indonesian nation in all aspects. This

point is concerned with the start of a new decade filled with all sorts of

new threats, challenges, obstacles and many distractions. This can arise

from anywhere and from anyone, it can be externally or internally. From

this symptom, humans can easily judge and observe, as currently the

public is busy with new challenges initiated by the agenda of the Advanced

Indonesian Cabinet Government by placing a Draft Law on Job Creation

which is included in the National Legislation Program (PROGLEGNAS).

The government in this case issued Law Number 11 of 2020 concerning Job

Creation. The objectives of the establishment of the Job Creation Law are

as follows: (1) creating and increasing employment by providing

4 Jurnal Legislasi Nasional, Vol 6 No 3, September 2009, p. 3

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convenience, protection and empowerment of cooperatives and UMK-M

as well as national industry and trade so that they can homogenize the

Indonesian workforce as widely as possible, while still paying attention to

the balance and progress between regions in the national economy: (2)

guaranteeing to every citizen who gets a job, in order to receive fair and

proper remuneration and treatment in the employment relationship: (3)

make adjustments to several regulatory aspects related to partiality,

strengthening, and protection for members of cooperatives and UMK-M

and national industries; and (4) make adjustments from various regulatory

aspects related to increasing the value of investment, facilitating and

accelerating national strategic projects with an orientation to national

interests based on the Pancasila Ideology.5

This Job Creation Law was formed by the omnimbus law method by

simplifying 81 laws with a total of 1,244 articles into one law. This

omnimbus law method is commonly used in countries that use the

common law legal system, such as America. According to Maria Farida

Indrati who stated that the Omnimbus Law is one of the Laws that contains

and regulates various kinds of substances and subjects as a step of

simplification of various applicable laws. In the implementation of the

issuance of the Job Creation Law, it received a lot of opposition from the

public, because the process was assessed very quickly and in its

preparation, there was no participation from the public, so there were

many errors in the content of the article which were considered very

detrimental to the community. Normatively, if a law is considered contrary

to higher laws and regulations, it can be tested to the Constitutional Court

based on the provisions of Article 24C paragraph (1) of the 1945

Constitution of the Republic of Indonesia which states that: "The

Constitutional Court has the authority to adjudicate at the first and last

level whose decision is final, to test the Law against the Basic Law".

Therefore, the Constitutional Court granted the application for a formal

5 Pasal 3 Undang-Undang Nomor 11 Tahun 2020 tentang Cipta Kerja.
7 Maria Farida Indrati, “Omnibus Law, UU Sapu Jagat?”, dalam Harian Kompas, 4

Januari 2020, p. 6.

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526 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

test of the Job Creation Law. The Constitutional Assembly affirmed that

Law Number 11 of 2020 concerning Job Creation was considered formally

flawed, so the Court declared that the Job Creation Law was conditionally

unconstitutional. 6

The decision of the Constituent Court on the formal testing of Law

Number 11 of 2020 concerning Job Creation continues to be a polemic and

public discussion. Of the 12 applications that will be tested both formally

and materially, only 1 application has been granted, namely in the

Constitutional Court Decision No. 91/PUU-XVIII/2020 which states that

the Job Creation Law is unconstitutional conditional. The Constitutional

Court explained that the reason why the Job Creation Law was declared

unconstitutional, this is because the Constitutional Court wants to avoid

legal uncertainty and the great impact that will be caused, therefore the

Court must consider and balance the formal requirements in creating the

Law. In its 448-page ruling, the Constitutional Court also ordered the

framers of the Act to make improvements for a period of not more than 2

years, from the time the judgment was pronounced. If no improvement is

made during the grace period, then this Job Creation Law is declared

permanently unconstitutional. On the contrary, the consequences of

articles or materials containing a number of laws that have been repealed

and amended, the Job Creation Law can be re-enacted. The Constitutional

Court also ordered the Government to affirm all actions or policies that are

strategic and have a broad impact, and not to issue new implementing

regulations related to the Job Creation Law.

Based on the background that has been described, the author in this

study will examine: (1) How to Test the Formal Implementation of the Job

Creation Law After the Constitutional Court Decision; and (2) What is the

Direction of Improvement that will be carried out by the Government in

the management system of the Establishment of Laws and Regulations

after the decision. The purpose of this study is as follows: (1) In order to

analyze the Formal Testing of the Job Creation Law after the Decision of

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the Constitutional Court; and (2) In order to analyze the direction of

improvements made by the Government to the system in the management

of the Establishment of Laws and Regulations after the Decision of the

Constitutional Court that has been issued.

METHOD

This research uses research methods with the type of normative juridical

research, where the research is used to find conherence between legal rules

and norms, legal norms with legal principles, and actions with legal norms

or principles. Mukti Fajar and Yulianto Ahmad in their book explained that

this normative legal research is a study that places the law as a building in

a system of norms consisting of principles, norms, rule of laws and

regulations, agreements, and doctrines (teachings) applied. As a result of

this study, the author can describe the results of the formal testing of the

Job Creation Law which is connected with the Constitutional Court

Decision with The Science of Legislation, using a statutory approach and

using theories from the views of legal experts through a conceptual

approach that is carried out systematically and holistically. The data used

in this study also used secondary data, which was obtained through

literature studies and secondary data through the collection of materials

both primary, secondary, and tertiary. Then all these data are processed

and arranged into one systematically and logically, by providing a

prescription or solution that should be able to solve the problem at hand.7

7 Peter Mahmud Marzuki. 2019. Penelitian Hukum, Edisi Revisi, Cetakan ke-14. Jakarta:

Prenada Media Group, hlm. 47.

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528 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

RESULT & DISCUSSION

I. FORMAL TESTING OF THE JOB CREATION

LAW AFTER THE CONSTITUTIONAL

COURT'S DECISION

On November 25, 2021, the Constitutional Court (MK) read Decision

Number 91/PUU-XVIII/2020 concerning Formal Testing of Law Number

11 of 2020 on Job Creation (Job Creation Law). In its ruling, the

Constitutional Court granted some of the applications submitted by

Migrant CARE, the Nagari Customary Density Coordinating Board of

West Sumatra, the Minangkabau Customary Court, and Muchtar Said.

More fully, the citation in a quo judgment states that the establishment of

the Job Creation Law is contrary to the 1945 Constitution and does not have

conditionally binding legal force as long as it is not interpreted as "no

improvement has been made within 2 (two) years since this decision was

pronounced". Stating that the Job Creation Law remains in force until

improvements are made to the formation in accordance with the grace

period as specified in this decision."

The decision read by the Chief Judge of the Constitutional Court,

Anwar Usman, not only succeeded in resolving the conflict between the

people and the framers of the law (read: DPR and the President) due to the

implementation of the Job Creation Law. However, more than that, the

sound of the verdict also triggered the birth of confusion in the community.

In a writing that dates back hundreds of years, James B. Thayer (1893)

introduced the theory of judicial restraint. This theory, he introduced in a

paper entitled "The Origin and Scope of the American Doctrine of Constitutional

Law" by saying that courts should limit and refrain from making policies

that are the domain of the authority of the executive and legislative

branches of power.

The theory of judicial restrictions was later developed by many

experts in the following years. One of the experts who developed this

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theory and is widely referenced is Richard A. Posner. In his article entitled

"The Rise and Fall of Judicial Self-Restraint" published in California Law

Review (2012), he classified the approach to judicial restriction theory into

three categories. All three categories are: first, the approach of legalism or

formalism which states that judges only carry out the law and do not make

laws. Second, modesty, institutional competence, or process jurisprudence

which requires judges to respect and not enter the territory of legislative or

executive authority. Ketiga, a constitutional restraint that places judges to

be very reluctant to declare unconstitutional a decision or an executive or

legislative action.

According to Bisariyadi (2015), the theory of judicial restrictions is

also used by the courts to maintain harmonious relations with other

branches of power, especially the executive and legislative branches of

power. The relationship must be maintained by the courts so that they

avoid political attacks that can endanger the existence of their institutions.

Various kinds of political attacks can be in the form of dissolution of the

judiciary, limiting the authority of the judiciary, increasing the authority of

the judiciary without providing additional resources, politicizing the

recruitment of judges, delaying the disbursement of the budget needed by

the judiciary and other forms of political attacks that have the potential to

threaten the existence of the judiciary.

For example, in 2012, the Hungarian Constitutional Court came under

tremendous political attack through constitutional changes. Under the new

constitutional rules, the authority of the Hungarian Constitutional Court

was restricted and the procedure for selecting constitutional judges was

changed to benefit the regime in power. Ukraine's Constitutional Court

came under intense political pressure when it was asked to assess the

constituency of the Ukrainian President's request to dissolve Parliament in

2007. Such intense political pressure even led the Chairman of the

Constitutional Court of Ukraine to resign. One form of political pressure

came from the police, when they decided to examine constitutional judges

on corruption charges. Finally, the political pressure exerted on the

Ukrainian Constitutional Court succeeded in shutting down the existence

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530 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

of this constitutional judicial institution. This is because, after the incident,

3 judges were removed from office and another 4 judges applied for leave

to the president.

The need for regulatory reform in Indonesia has been swelling due to

the number of regulations that are perceived to be not easy to carry out in

increasing business activities and the absence of support for investment

activities. As in the present, the situation is getting worse due to the

existence of data on laws and regulations that are often not the same as

data managers from one another. Other problems such as the absence of

an institution that is the place to be the sole manager of official laws and

regulations data, thus making the data not become structured. therefore,

in Indonesia, it still does not show that its regulations have problems that

must be addressed quickly.8

A year after the enactment of Law Number 11 of 2020 concerning Job

Creation, the Constitutional Court finally decided the job creation law was

unconstitutional. Through Decision Number 91/PUU-XVII/2020 or the

Formil Test Decision of the Job Creation Law read on November 25, 2021,

the decision states that the Job Creation Law contains formal defects in the

process of its formation, so that the DPR together with the government

must improve the law in accordance with the procedures for the formation

of the applicable law and within a maximum period of two years in the

future. This Job Creation Law is a manifestation of neoliberal authoritarian

cositualinalism that has been opposed by society since its inception. The

Constitutional Court declared the Job Creation Law to be formally flawed,

and the Job Creation Law is still valid even though it has been suspended.

In substance, the Job Creation Law is considered very detrimental to

the community, especially in the field of labor. Normatively, in Article 51A

paragraph (3) of the Constitutional Court Law, if it is connected with the

Constitutional Court Decision Number 79/PUU-XVII/2019, it has

8 Wicipto Setiadi, Simplifikasi Regulasi Melalui Pendekatan Omnibus Law: Suatu

Keniscayaan, Orasi Ilmiah Dalam Rangka Dies Natalis Universitas Pembangunan

Nasional “Veteran” Jakarta Ke-57, 7 Januari 2020, p. 2.

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determined the requirements in submitting an application for formal

testing, as follows:

1. Testing of the implementation of procedures in the formation of laws,

both in the discussion and in making decisions on the draft law into

law;

2. Assessment of the form, format, or systematics of the statute;

3. Testing with respect to the authority of the institution, which makes

decisions in the process of forming laws;

4. Testing of other things that are not included in material testing.

In the main application submitted, the applicant in the Constitutional

Court Decision Number 91 stated that, the Job Creation Law did not meet

the provisions in the formation of laws based on the 1945 NRI Constitution

and Law No. 12 of 2011, so that in this formation it was considered a formal

defect or procedure, because: 9

1. This Job Creation Law is not appropriate and violates the

compositional format in the regulations in Law Number 12 of 2011;

2. This Job Creation Law is contrary to the principles in the formation of

laws and regulations, in the form of the principle of clarity in

objectives, the principle of usefulness and usefulness, the principle of

clarity of formulation and the principle of openness;

3. Changes to the content material after the joint approval with the DPR

and the Government, which is contrary to Article 20 Paragraph (4) of

the 1945 NRI Constitution and Article 72 Paragraph (2) of Law

Number 12 of 2011 concerning the Establishment of Laws and

Regulations.

The establishment of a law must guarantee meaningful participation,

it needs more than just the constitutional court to control the formation of

laws, the constitutional court's decision can cause legal uncertainty, and

the best way for the government to improve the Job Creation Law is to

repeal it first. In testing the Job Creation Law, it is indeed colored by

various differences of opinion by Constitutional Judges, so it is important

9 Putusan Mahkamah Konstitusi Nomor 91/PUU-XVIII/2021.

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532 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

to straighten out some of the Constitutional Court's considerations in the

Formal Testing of the Job Creation Law as follows:

1. In relation to the grace period for applying for formal examination,

based on the Constitutional Court Decision Number 27/PUU-VII/2009

mentioned in The Constitutional Court Decision Number 91, which is

for 45 days from the time the law is contained in the state gazette. The

Constitutional Court has a deadline to conduct an examination of no

more than 60 days from the time the case is heard. The formal testing

case of the Job Creation Law, which was registered on November 24,

2020 and was only read on November 25, 2021, was due to the

consideration of the Constitutional Court that the test of the Job

Creation Law was in the trial period, so it had to wait for the case to

be examined by the Constitutional Court.

2. The use of the omnimbus law method in the formation of the Job

Creation Law was considered by the Constitutional Court that:

1) In addition to using the 1945 NRI Constitution as the basis of the

state, Law Number 12 of 2011 concerning the Establishment of

Laws and Regulations is used as a benchmark in conducting

formal tests, as stated in the opinion of the Constitutional Court

in its Decision Number 27/PU-VII/2009. Therefore, in the

preparation of laws, it must be in accordance with rules or

procedures and methods that are certain, standard, and in

accordance with standards that can bind all authorized

institutions.

2) There is a vagueness in the form of the Job Creation Law which

is reviewed in terms of giving titles, where the procedure for

giving this title has also been regulated by default in Appendix I

to Law Number 12 of 2011 concerning the Establishment of Laws

and Regulations, both in terms of new laws, changes and those

that have been repealed.

3) The formulation of the Job Creation Law raises confusion

because as a changing law, there is a separate formulation of

principles, objectives and scopes so as to cause overlaps that

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cause uncertainty or confusion by readers in understanding the

Job Creation Law, and the Constitutional Court considers the

principle of clarity and problem formulation to be appropriate

and qualified in accordance with the provisions of the Laws and

Regulations.

4) In the Job Creation Law, it is not justified in the name of the

length of time in forming the Law, this is to reduce deviations in

standard and standard procedures for this purpose. Basically, in

a constitutional democratic state, efforts to achieve goals cannot

be made by violating definite principles and ordinances and

must meet the standards in the formation of laws.

5) The omnimbus law method, which is not contained in the Law

Forming Law, the Constitutional Court affirmed that it is related

to the Technique or method used by the framers of the Act as an

effort to simplify the Act and to eliminate the overlapping of the

Act. In accelerating the process of forming an Act, it is not a

question of constitutionality as long as the methods used are

appropriate and appropriate in accordance with definite

guidelines and meet the standards. This omnimbus law method

cannot be used before it is adopted in the law on the formation

of laws and regulations. When compared to Law Number 32 of

2004 concerning Local Government and Law Number 7 of 2017

concerning General Elections, according to the Constitutional

Court, the character of the omnimbus law method in the Job

Creation Law is different from the formation of the two laws. it

can be seen from the number of laws that were simplified to 78

laws with different content materials and all these laws were

combined into one, except for the articles amended in Law

Number 11 of 2020.10

10 Indrayana, Denny. “Polemik Dibalik Putusan MK Terkait UU Cipta Kerja”. Makalah.

Disampaikan dalam Diskusi Publik Perhimpunan Mahasiswa Katolik Republik

Indonesia, Melbourne, Australia. Tanggal 6 Desember 2021.

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534 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

3. There was a change in the content material after the approval of the

Draft Law, which was not just a technical nature of writing, including

any errors in its citation, the Constitutional Court gave the opinion

that there were at least 8 articles that were linked on pages 151-152,

388, 390, 391, 374, 424, 492-494, and which underwent sbstansial

changes between the manuscripts before and after ratification. The

Constitutional Court also found some errors in the reference to the

article in the Job Creation Law, which is contained in Paal 6 of the Job

Creation Law which refers to Article 5 and should be used as a

reference in Article 4 letter a. The Constitutional Court also held that

this proves that there has been a citation error in referring to the article

so that it is not in accordance with the principle of "clarity of

formulation" which states that every law must meet the technical

requirements preparation of laws and regulations, systematics, choice

of words or terms, as well as clear and easy-to-understand legal

language so as not to cause various kinds of interpretations in its

implementation.

4. Related to the Job Creation Law which is contrary to the principle of

clarity of purpose, the principle of usefulness and usefulness, the

principle of clarity of formulation, and the principle of openness. The

Constitutional Court gave an opinion that there had been a legal fact

that the procedures for the establishment of the Job Creation Law did

not meet the principle of clarity of purpose and the principle of clarity

of formulation. Because the norms of Article 5 require the fulfillment

of all principles cumulatively, with the non-fulfillment of only 10s, the

provisions of Article 5 of the Law on Laws and Regulations are

neglected by the process of forming laws and regulations.

Accordingly, according to the Court it is irrelevant to further consider

the petitioners' pleadings, except with regard to the principle of

openness.

With the consideration given by the Constitutional Court which

stated that the process of forming the Job Creation Law did not meet the

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JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022 535

provisions under the 1945 NRI Constitution, so it was declared a formal

defect. However, taking into account that there are also big goals to be

achieved, with the enactment of Law Number 11 of 2020 concerning Job

Creation and many implementing regulations have been issued and many

have even been implemented and practiced. Thus, in order to avoid any

legal uncertainty and the great impact that will be caused, the

Constitutional Court must declare it conditionally unconstitutional. This is

because the Constitutional Court must adjust between the conditions for

the formation of a law and must be met to ensure the elements of legal

certainty, expediency and justice, with the strategic objectives of the

establishment of a quo Law11.

Against the Constitutional Court Decision Number 91/PUU-

XVIII/2020, there were 4 Constitutional Judges who expressed dissenting

opinions with the decision (dissenting opinion). The four Constitutional

Judges, namely: (a) Constitutional Judge Arief Hidayat; (b) Constitutional

Judge Anwar Usman; (c) Constitutional Judge Manahan M.P. Sitompul;

and (d) Constitutional Judge Daniel Yusmic P. Foekh. The existence of

differences of opinion that arise between Constitutional Judges (5 people

to 4 people), shows that the decision is not unanimous among

constitutional judges and tends to be ambiguous or multi-interpretation.

Responding to the Constitutional Court Decision Number 91/PUU-

XVIII/2020, the Government through the coordinating minister for

Economic Affairs, provided an explanation and response through a press

release as follows:12

11 Asas-asas hukum formal yang meliputi: (1). Asas tujuan yang jelas; (2). Asas

organ/lembaga yang tepat; (3). Asas perlunya pengaturan; (4). Asas dapatnya

dilaksanakan; (5). Asas konsensus. Asas-asas hukum material yang melingkupi: (1).

Asas tentang terminologi dan sistematika yang benar; (2). Asas tentang aturan yang

dapat dikenali; (3). Asas perlakuan yang sama dalam hukum; (4). Asas kepastian

hukum; (5). Asas pelaksanaan hukum sesuai keadaan individual. I.C van der Vlies,

Buku Pegangan Perancang Peraturan Perundang-Undangan, Direktorat Jenderal

Peraturang Perundang-undangan, Jakarta, 2005, pp. 238-307
12 Asshiddiqie, Jimly. 2020. Pengujian Formil Undang-Undang di Negara Hukum. Jakarta:

Konpress.

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536 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

1. The government respects and complies with the decision of the

Constitutional Court and will implement Law Number 11 of 2020

concerning Job Creation (Job Creation Law) as well as possible in

accordance with the decision of the Constitutional Court.

2. The decision of the Constitutional Court has stated that Law Number

11 of 2020 concerning Job Creation remains constitutionally valid

until improvements are made to its formation in accordance with the

grace period set by the Constitutional Court, which must be repaired

no later than 2 (two) years after the decision is read.

3. The Decision of the Constitutional Court also stated that the

Government should not issue new regulations of a strategic nature

until improvements are made to the establishment of Law Number 11

of 2020 concerning Job Creation. Thus, the laws and regulations that

have been enacted to implement the Job Creation Law still remain in

force

4. Furthermore, the Government will immediately follow up on the

decision of the Constitutional Court in question through the

preparation of improvements to the Law and implement as well as

possible the directives of other Constitutional Courts as referred to in

the decision of the Constitutional Court.

II. THE GOVERNMENT'S EFFORTS IN

IMPROVING THE MANAGEMENT SYSTEM FOR

THE ESTABLISHMENT OF LAWS AND

REGULATIONS AFTER THE CONSTITUTIONAL

COURT DECISION IN THE JOB CREATION LAW

After the emergence of debate among the public and academics from the

implications of the Constitutional Court's decision on 12 Applications from

the Copyright Law in November last year, there was only 1 case granted

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JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022 537

by the Constitutional Court concerned in the formal test. One such case is

inadmissible because the petitioner cannot show his legal standing, while

the other 10 cases related to material testing cannot be accepted because

the application for loss of object, because the Constitutional Court has

declared the Job Creation Law to be unconstitutional.

Denny Indrayana in his article explained that the constitutional court

Decision there are 5 ambiguities that occur, as follows13:

1. The Job Creation Law which is expressly stated to be contrary to the

1945 Constitution but is still given room to be valid for 2 years, for

example as published by the implementing rules and has

implemented. However, theoretically the constitutional court should

firmly overturn the Job Creation Law and the reason for improvement

cannot be used as an excuse for a law that is declared to violate the

constitution to remain in effect.

2. Of the 12 decisions related to the Job Creation Law, the Constitutional

Court stated that 10 of them lost their objects because the Job Creation

Law had been declared conditionally unconstitutional.

3. The Constitutional Court Decision Number 91/PUU-XVIII/2020

stated that the law was still in force while 10 other constitutional court

decisions related to the same law stated that the application was not

accepted. Even though the Constitutional Court has declared that the

Job Creation Law is still valid with a 2-year delay for improvement,

but it cannot be tested for substance. By deciding not to accept all

material tests, it means that the constitutional court's decision has

become the basis for the occurrence of 'constitutional impunity' for

norms in the Job Creation Law that have the potential to violate the

1945 Constitution.

4. The Constitutional Court's ruling raises multiple interpretations on

whether it can still be implemented or not. There are two camps that

13 Denny Indrayana, “Lima Ambiguitas Putusan MK Terkait Pembatalan UU Cipta

Kerja”, 26 November 2021, https://www.integritylawfirm.id/2021/11/26/lima-

ambiguitas-putusan-mkterkait-pembatalan-uu-cipta-kerja/, diakses pada 22

Desember 2021

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538 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

differ in opinion. One party views that the Job Creation Law can still

be implemented in two years while the other party believes that the

Job Creation Law should no longer be implemented at all.

5. In the Constitutional Court Decision Number 91/PUU-XVIII/2020, the

Constitutional Court still looks very firm in implementing the

formalities of lawmaking, including criticizing the lack of space for

public participation in the formation of the Job Creation Law.

However, the Constitutional Court did not apply the same standards

when formally testing changes to the KPK Law and changes to the

Mineral and Coal Law, which were also super lightning and actually

eliminated public participation.14

In a constitutional democratic state, it is inseparable between the goals

to be achieved in the right way in achieving those goals. This method of

omnimbus law cannot be used as long as it has not been adopted in the law

on the formation of legislation. With the opening of space to make changes

to the Job Creation Law, it means technical or methods designed to always

follow or be adaptive to the development of needs, including if there will

be simplification of laws and regulations in any way or method, including

the omnimbus law method as a draft law that has been approved with the

DPR and the President. The formation of laws with processes and

mechanisms that actually close or distance the involvement of community

participation to participate in discussing and debating their contents, it can

be said that the formation of these laws violates the principle of people

sovereignty.15

To avoid a greater impact on the enactment of Law Number 11 of

2020 concerning Job Creation, the 2-year constitutional court stated:

14 Dodek, Adam M., “Omnibus Bills: Constitutional Constraints and Legislative

Liberations”, Ottawa Law Review, Vol. 48, No. 1, 2017.
15 Andryan. “Implikasi Putusan Hak Uji Materiil di Mahkamah Agung Terhadap

Legalitas Pimpinan Dewan Perwakilan Daerah Republik Indonesia”. Jurnal Penelitian

Hukum De Jure. Vol. 18. No. 3. Tahun 2018

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JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022 539

1. Implementation of Law Number 11 of 2020 concerning Job Creation

relating to matters of a strategic nature and has a broad impact to be

suspended first;

2. It is not justified to form new implementing regulations;

3. It is also not allowed for state organizers to make strategic policies

that can have a broad impact based on the norms of Law 11/2020

which has been formally declared conditionally unconstitutional.

The Decision of the Constitutional Court Number 91/PUU-XVIII/2020

is a new model variant which therefore contains conditional

unconstitutional amar in the case of formal testing of a 1945 Law of the

Republic of Indonesia. The Constitutional Court also gives mandates and

a quo ruling is that are actually aimed at the framers of the law, not just the

president. Therefore, this is the responsibility of the president, the DPR and

certain things as well as the DPD. An in-depth study of the consequences

of changing or replacing the Job Creation Law as a result of the

Constitutional Court Decision Number 91/PUU-XVIII/2020 on various

implementing regulations of the Job Creation Law is needed that has been

created. Then, a more in-depth study of the concept and pattern of

restructuring and reformulation of the Job Creation Law is needed in

accordance with the mandate and decision of the Job Creation Law,

furthermore, it is also necessary to conduct an in-depth study of the

potential regulation of the omnimbus law method in the formation of laws

and regulations through changes or replacements from Law Number 12 of

2011 or with a presidential regulation system16.

Therefore, the government may be able to make efforts to improve

the system of forming laws and regulations after the Constitutional Court

decision which states that the Job Creation Law is conditionally

unconstitutional, such as:

1. Immediately Draft a new Bill through the open cumulative list route;

16 Yunan Hilmy, 2021, Kajian Awal Mengenai Implikasi Putusan Mk No. 91/Puu-Xviii/2020

Terhadap Upaya Reformasi Regulasi, BPHN: Pusat Analisis Dan Evaluasi Hukum

Nasional Badan Pembinaan Hukum Nasional Kementerian Hukum Dan Ham RI

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540 JOURNAL OF LAW & LEGAL REFORM VOLUME 3(4) 2022

2. Restructure the Job Creation Law in accordance with the rules or

procedures in the formation of laws and regulations, namely Law

Number 12 of 2011;

3. Include the concept of regulating the omnimbus law method in

changing the replacement of Law Number 12 of 2011 or regarding the

Presidential Regulation.

CONCLUSION

The Constitutional Court is one of the institutions that has the authority to

test the Law against the 1945 Constitution of the Republic of Indonesia,

both in substance and in the content, material contained in the law in

accordance with the provisions of the laws and regulations. In the science

of legislation, testing of the constitutionality of laws can be carried out

materially or formally. Formal testing of the job creation law that is

currently carried out on conformity in the stages of forming laws and

regulations, because theoretically the law is declared defective then it can

be undone in its entirety. But in its implementation, there are several

constitutional court rulings that declare the application inadmissible,

rejected, granted, constitutional or conditionally unconstitutional. As in

the Constitutional Court Decision Number 91 / PUU-XVIII / 2020 which

was declared conditionally unconstitutional because it did not meet the

procedure in the formation of laws and regulations. Although the

judgment was declared unconstitutional, the judgment was given a grace

period of 2 years for remedial in accordance with the ordinance or methods

in the formation of Legislation.

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Analisis Dan Evaluasi Hukum Nasional Badan Pembinaan Hukum

Nasional Kementerian Hukum Dan Ham RI

Acknowledgment

None

Funding Information

None

Conflicting Interest Statement

The author stated that there is no conflict of interest in the publication of

this article.

Publishing Ethical and Originality Statement

The author stated and declared that all sources cited in this work adhere to

the fundamental norms of scientific quotation, and that this work is

entirely original and has never been published in any format or media or

been accepted for publication in any journal.

About Author(s)

Danang Aji Saputra is Master of Laws student at the Faculty of Law

Universitas Negeri Semarang. He is also working as Budget Board of the

Regional House of Representatives of Batang Regency Period 2019-2024

from Golkar Party (Partai GOLKAR).

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