Within a day, two different drafts of the job creation law have circulated, leading many to suspect that changes were made to the bill despite it already having been approved by the House of Representatives.
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RINI KUSTIASIH/AGNES THEODORA
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Kompas/Wawan H Prabowo
The DPR Plenary Meeting at the Parliament Complex, Senayan, Jakarta, Monday (5/10/2020). One of the agenda items is the approval of the Job Creation Bill.
JAKARTA, KOMPAS – After it was approved to be passed into law at the House of Representatives’ plenary session, the job creation draft bill circulating among the public has seen several changes. If these changes were actually made subsequent to the House’s approval, the omnibus law would potentially be rendered legally flawed.
Since the job creation bill was passed at the House plenary session on 5 Oct, Kompas has received three drafts of the law up until Monday (12/10/2020).
The first draft, of 905 pages, was obtained from House Legislative Body (Baleg) deputy chairmen Achmad Baidowi and Willy Aditya on 5 October. At that time, both said the draft was what was approved at the plenary session. However, the draft could not yet be accessed by the public because, according to them, there were still grammatical and punctuation errors that still needed to be corrected. As for its content, it was promised that no changes would be made.
On Monday morning, Kompas then received another draft totaling 1,035 pages from House secretary-general Indra Iskandar. Indra claimed the draft was the result of revisions made by the House Baleg on Sunday (11/10) night. He said this was also the final draft that would be sent to President Joko “Jokowi” Widodo to be signed and ratified.
However, on Monday night, Indra delivered yet another draft of the law, this time totaling 812 pages. It was said that this was due to a change in paper format, from the original legal paper to A4. “This is the final draft. There will be no more meetings at the Baleg to revise the draft because it is finished,” he said.
According to Indra, the draft’s revision was done by the House Baleg and a team of Baleg experts together.
A police officer fires a projectile during a rally against a controversial bill on job creation in Jakarta, Indonesia, Thursday, Oct. 8, 2020. Thousands of enraged students and workers staged rallies across Indonesia on Thursday in opposition to the new law they say will cripple labor rights and harm the environment.
Changes to content
Apart from the number of pages, Kompas has identified a number of differences in the substance of the three drafts. For example, differences were found in the severance pay regulation. Article 156 in the draft of 905 pages stipulates that severance pay, when there is a termination of employment (PHK), is given 19 times “at most” the wage according to the length of service. In the 1,035-paged draft, the phrase “at most” had been removed and was replaced with “conditionally.” The word “conditionally” was then later retained in the 812-paged draft version.
Changes were also found in Article 156 Paragraph 1. In the 905-paged draft, it is stated that employers are obligated to pay severance to laid-off workers. However, this rule was changed in the 1,035-paged draft, whereby employers were only obligated to pay severance under certain conditions, as stated in Article 154A. Then, the phrase “under certain conditions” was removed in the 812-page draft and returned to what was stated in the 905-paged draft.
Regarding the latest draft of 812 pages, House deputy speaker Azis Syamsuddin from the Golkar faction said he was unaware of the multiple drafts. “Please check with the secretary-general,” he said.
Meanwhile, House deputy speaker Sufmi Dasco Ahmad of the Gerindra Party confirmed the draft of 1,035 pages on Monday afternoon. “The number of pages is correct, but I will have to see its contents first,” he said.
House Baleg member from Golkar, Firman Soebagyo, asked the public to remain patient. “The House had seven days to review the draft. There cannot be typos or errors,” he said.
The number of pages is correct, but I will have to see its contents first.
KOMPAS/DAHLIA IRAWATI
Rejection Omnibus Law – Dozens of students from the People Alliance for Democracy hold up posters at a rally at City Hall in Malang city, East Java, on Monday (24/2/2020). The protesters objected to the omnibus bill on job creation, which they claimed would sacrifice the normative rights of the community.
However, Firman emphasized that there should not be any changes made to the draft’s substance as it had already been approved at the plenary session. “Improvements [made to the draft] will not change its substance. They are not allowed to reduce or add content,” he said.
On the other hand, Manpower Ministry secretary-general Anwar Sanusi confirmed that changes had been made to certain articles after the bill was approved. A team from the Manpower Ministry, according to Anwar, was involved in the editorial process of the draft with the House, after the bill was approved at the plenary session.
Regarding the severance pay article, for example, the changes were made to serve a middle ground, according to him.
“Perhaps it is like this, we cannot let it [the word choice] be too rigid. If we limited it to ‘at the most’, someone will be at a disadvantage. If we limited it to ‘at the least’, then someone else will be disadvantaged. So, yes, we have written a sentence that does not need to use those words,” said Anwar.
The provisions on severance pay stipulated in the job creation bill are what laborers and workers are protesting against. This is because severance pay stipulated in the bill is lower than what is stipulated in Law No. 13/2003 concerning manpower.
AP PHOTO/BINSAR BAKKARA
Protesters hurl debris at police during a rally against a controversial bill on job creation in Medan, North Sumatra, Indonesia, Thursday, Oct. 8, 2020. Thousands of enraged students and workers staged rallies across Indonesia on Thursday in opposition to the new law they say will cripple labor rights and harm the environment.
Legally flawed
Changes made to the draft of the jobs law and the lack of certainty surrounding the issue can potentially render the law legally flawed when reviewed at the Constitutional Court (MK).
“The plenary is the highest institution for decision-making in the formulation of laws. This means that once a bill has been finalized, there should be no more discussions on it, let alone any changes made to its content. If that happens, it means that the plenary did not have the final say,” said Parahyangan Catholic University law professor Asep Warlan Yusuf.
Punctuation and grammar corrections need to be completed prior to the plenary session. Substantial changes, Asep continued, can cause legal uncertainty and neglects good statutory procedures.
The plenary is the highest institution for decision-making in the formulation of laws.
Andalas University constitutional law teacher Charles Simabura assessed that these alleged changes violate the principle of constitutionalism. “It shouldn’t change after the plenary session. The addition and subtraction of substance must be done by the House and the government. How can this be done by the House Baleg and certain teams behind closed doors?” he asked.
With these changes found in the drafts of the jobs law, it is natural then for the public to question the actual draft that was passed in the plenary session. “[The law] may potentially be legally flawed as it is not the text approved at the plenary session, but an edited version by a team that had no authority to change or add to the law,” said Charles.
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