Sanctions in the Job Creation Bill

The government officially submitted the omnibus bill on job creation to the House of Representatives (DPR) on 12 Feb. 2020 for deliberation in the next session period.

KOMPAS/WAWAN H PRABOWO

Students and workers hold up posters and other signs during a protest on Monday (9/3/2020) to mark International Women\'s Day at the House of Representatives (DPR) in Senayan, Jakarta. In addition to condemning sexual violence as well as the discrimination and exploitation of women workers, the protesters also expressed their objections to the omnibus bill on job creation, which they said was taking a sapu jagat (one size fits all) approach in its aim to attract investment.

The 1,028-page bill consists of 174 articles that affect 1,203 articles in 79 laws. The bill consists of 11 discussion clusters. First, the simplification of licensing is related to 1,042 articles in 52 Laws. Second, investment requirements deal with nine articles in four laws. Third, employment is related to 63 articles in three laws.

Fourth, convenience, protection of MSMEs and cooperatives are related to six articles in three laws. Fifth, ease of doing business is related to 20 articles in nine laws. Sixth, research and innovation support is related to one article in one law. Seventh, government administration is related to 11 articles in two laws. Eighth, the imposition of sanctions in the form of a new norm. Ninth, land acquisition is related to 14 articles in two Laws. Tenth, investment and national strategy projects in the form of a new norm. Eleventh, economic zones are related to 37 articles in three laws.

Main weaknesses

The purpose of this bill is to create employment as widely as possible for the people of Indonesia evenly in order to fulfill the right to a decent livelihood through the ease and protection of MSMEs and cooperatives, improvement of the investment ecosystem, ease of doing business, improvement in the protection and welfare of workers, and acceleration of national strategic projects.

Also read : Legal Politics of Job Creation Bill

In accordance with the title above, this article discusses the imposition of sanctions existing in all clusters in the job creation bill and their enforcement. Despite the noble aims of the bill, it has many weaknesses that need to be corrected before further discussion with the DPR. The weaknesses include a number of provisions related to criminal sanctions and law enforcement.

KOMPAS/ALIF ICHWAN

Manpower Minister Ida Fauziyah (third right) poses for a photograph with participants before opening the Coordination Meeting of the Heads of the Provincial Manpower Offices in Indonesia. The meeting discussed the job creation bill in Jakarta on Thursday (20/2/2020).

In the context of criminal law, a number of criminal provisions in the bill are special external criminal laws or special criminal laws that are not criminal laws. They can be said to be administrative criminal laws. That means that a number of the laws are essentially administrative laws that are given criminal sanctions. The first nature and characteristic of the special external criminal laws is ultimum remidium. That means criminal law is a last resort if other legal arrangements no longer function to enforce the laws. Second, the formulation of types of criminal sanctions is threatened alternatively. Third, criminal sanctions are a substitution for the application of other sanctions.

The job creation bill is in accordance with the modern criminal law paradigm, which is oriented to corrective justice, rehabilitative justice and restorative justice. Corrective justice is related to sanctions for the wrongdoers, rehabilitative justice is more for the improvement of mistakes, restorative justice focuses on the recovery of victims affected by the wrongdoers. Unfortunately, the modern criminal law paradigm is not followed by an appropriate norm so that it is vulnerable to a material test to be filed to the Constitutional Court because it does not provide legal certainty, and allows for multiple interpretations and discrimination.

Also read : The Middle Way for the Job Creation Bill

There are at least eight notes regarding sanctions and law enforcement in the job creation bill. First, the norm that is based on rubrica est lex. It means that the title of the chapter is decisive. Almost all sanctions in each cluster of this bill are in the Criminal Provisions chapter. Unfortunately, violations of the norm are in an expressive verbis way subject to administrative sanctions. Strictly speaking, there is an unsynchronization between chapter titles and article substance. If the norm is tested, it is almost certain that it will be canceled because it violates the above-mentioned principle, which is the complete principle of titulus est lex rubrica est lex.

Second, the threat of criminal sanctions that are inconsistent between one law and the other. There are types of criminal sanctions that are threatened alternatively, but there are also types of criminal sanctions that are cumulatively threatened. In fact, if it relies on the characteristics of a special external criminal law, this type of criminal sanction should be threatened alternatively. Third, Article 18 figure 35, which amends Article 70 of Law No. 26 of 2007 concerning spatial planning. In amendment to Article 70 there is an asynchrony between the nominal number between administrative sanctions and the calculated number. The written nominal value is Rp 4 billion. However, the figure that is calculated is 2 billion rupiah.

Fourth, Article 23 figure 37 which changes Article 98 of Law No. 32 of 2009 concerning environmental protection and management. Amendment to Article 98 Paragraph (2) in the job creation bill does not mention the types of criminal sanctions that can be imposed. Fifth, the provisions of Article 25 figure 41 amending Article 44 of Law No. 28 of 2002 concerning buildings. Amendments to Article 44 in essence, among others, state that building owners who do not meet the requirements are subject to administrative sanctions. In fact, in the bill, a number of articles concerning building requirements are abolished.

Sixth, inconsistent use of criminal justice norms. Sometimes different verses in one article use different penalty norms. In one verse an indeterminate sentence is used. That means that the legislators set minimum and maximum penalties that can be imposed. However, in other verses an indefinite sentence is used. That means that the legislators only set a specific minimum without a specific maximum. This has an impact on criminal disparities in the practice of law enforcement so that it leads to in uncertainty and tends to be discriminatory.

Seventh, regarding corporate responsibility. The omnibus bill on job creation does not have a clear concept related to corporate responsibility. Is the corporate responsibility limited to administrative and civil matters or is it also a corporate criminal responsibility? If it includes corporate criminal responsibility, further concepts to be questioned are whether they use identification theory or aggregation theory. This greatly affects the type of criminal sentence to be imposed. If using identification theory, in addition to fines, imprisonment can also be imposed on the management. Another case is if what is used is aggregation theory, the type of crime that can be imposed is only a fine. By examining the overall job creation bill, almost all of them adhere to the corporate responsibility that is limited to the administrative and civil cases. Unfortunately, there are several articles that state the threat of imprisonment against corporations.

Paper tigers

Eighth, regarding law enforcement. The authority of the National Police as investigators in 79 laws, which is covered by the job creation bill, is removed and handed over to civil servant investigators (PPNS). It needs to be remembered that not all ministries have PPNS. The establishment of PPNS in a ministry is not easy, especially if the action is pro justisia in nature. Further consequences, if there is a violation of the omnibus law on job creation, while PPNS at the ministry have not been formed, then law enforcement against violations cannot be applied. This means that the various sanctions in the job creation bill are like paper tigers.

Eddy OS Hiariej, Professor of Criminal Law, School of Law, Gadjah Mada University, Yogyakarta.