QUESTIONING THE PROBLEMATICS OF EMPLOYMENT COPYRIGHT

LAW: A STUDY FROM THE PERSPECTIVE OF THE FORMATION OF

LEGAL REGULATIONS AND THE STATE OF DEMOCRATIC LAW

Arjuna Suci Nugroho

NTU Faculty of Constitutional Law
[email protected]

Abstract

Law as a means of realizing prosperity, its existence is so crucial in a democratic legal state. This cruciali ty
makes the formation of laws which specifically can be called laws become a matter of concern. Therefore, the
principles of nomocracy and democracy are accommodated in the Law on the Formation of Legislation.
However, legislative practice that is not in accordance with normative ideas is a prevalence. One of them is the
Job Creation Law, the creation of which has resulted in social delegitimization. This writing aims to analyze
the problems of the Job Creation Law in the perspective of forming laws and democratic rule of law. The method
used is normative juridical with literature study data sources, laws and regulations, and expert opinions. The
formation of the Job Creation Law was not legal and there was minimal public participation. The poor
legislative system is shown by the existence of a Government Regulation in Law on Job Creation which was later
enacted into a law. This illustrates the pattern of non-compliance by the legislators and the form of ignoring
the Constitutional Court Decision Number 91/PUU-XVIII/2020.

Keywords: The Job Creation Law, Legislation, and the Democratic Law Country

Abstract

Law as a means of realizing prosperity, its existence is crucial in a democratic rule of law. This cruciality
makes the formation of laws which can specifically be called laws something to pay attention to. Therefore,
the principles of nomocracy and democracy are accommodated in the Law on the Establishment of
Legislative Regulations. However, legislative practices that do not conform to normative ide as are a
prevalence. One of them is the Job Creation Law, the formation of which resulted in social delegitimization.
This writing aims to analyze the problems of the Job Creation Law from the perspective of the formation of
legislative regulations and a democratic rule of law. The method used is normative juridical with data
sources from literature studies, statutory regulations and expert opinions. The formation of the Job Creation
Law was not legal and had minimal community participation. The poor legislative system is demonstrated
by the existence of a Government Regulation in Lieu of the Law on Job Creation which was later enacted
into law. This illustrates the pattern of non-compliance with the makers of legislative regulations and a form
of disregard for the Constitutional Court Decision Number 91/PUU-XVIII/2020.

Keywords: Job Creation Law, Legislation, and Democratic Rule of Law

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A. Introduction

The continuation of conditions filled with the arbitrariness of the authorities and the oppression of people's
rights is a picture of the state when it has not yet found enlightenment in the form of law. In its development,
law was used as a tool to limit absolute power.1 Due to the reaction to the status quo, the discourse of the rule
of law emerged which was supported by the thoughts of experts such as John Locke, Rousseoau, and
Montesquieu.2 The concept of the rule of law guarantees the protection of hum an rights, juxtaposing principles
popular sovereignty, and the division of state power.
The ideal state proposed by Plato can be realized by placing the supremacy of law. 3 In line with Plato,
Aristotle said that a state that stands above the law can prevent the decline of power. This is because law is
a form of collective policy that is formed based on the roots of society's needs and aspirations. 4 Therefore,
the existence of society in the formation of law is an important thing and must exist.
The explanation above shows the relationship between the rule of law which has democratic principles
and characteristics (democratische rechtstaat). Thus, law as commander in chief in this conception of the
state was created based on formation through a process of nomocracy and democracy. The depth of
meaning is that the desire to establish law is not only limited to procedures regulated by law, but also
involves community participation. In the end, compliance with the resulting law will gain legitimacy and
the creation of power from this law can also be legitimized.
The concept of a democratic rule of law can also be seen in the process of creating a state formed by
the people by binding themselves as a nation to achieve independence over colonialism. The Indonesian
state that was formed, then in its implementation was guided by Pancasila and the Constitution, namely
the 1945 Constitution of the Republic of Indonesia. This is the essence of a rule of law state that will create
democracy based on law. The constitution, as the highest law based on hierarchical unity, contains two
theories, namely legal sovereignty and popular sovereignty. In legal sovereignty, the law as the highest
authority makes the ruler and the people subject to it. As for popular sovereignty, accor ding to Rousseau,
it is explained that the people hand over power to the state. 5 However, John Locke argued that this great
power has limits in the form of human rights. This is in line
with the aim of the founding of the state, namely to protect human rights.6
Indonesia's democratic rule of law is contained in Article 1 paragraph (2) and paragraph (3) of the
1945 Constitution of the Republic of Indonesia. The juridical consequence is that state administration is
based on the principles of a democratic rule of law. The administration of this state includes creating good
government and an orderly society through the existence of law. The existence of law will display its values,
functions and objectives which are in line with state objectives through the legislative process to its
implementation.
The state, as an organization of power, has institutions that have the authority to form laws. This
institution represents society in creating laws that are just, useful and certain. These three are basic values
inherent in the law. Whether the law is good or not will be seen whether it touches philosophical,
sociological and juridical aspects. This means that the involvement of these three aspects in the law
formation process will lead to the crystallization of three basic legal values.
Azhary, "Indonesian Legal State" (Jakarta: UI Press, 1995).
1

Azhary.
2

Widayati, "State of Law, Constitution, & Formation of Legislation" (Semarang: Unissula Press, 2016).
3

Widayati.
4

Jean Jacques Rosseau, "Discourse on Political Economy and The Social Contract" (New York: Oxford University Press,
5

1994).
6
Adam Muhshi, "Constitutional Theology: Human Rights Law on Religious Freedom in Indonesia" (Yogyakarta: LKiS
Pelangi Aksara, 2015).

97
 The basis for the formation of laws is regulated in Article 22A of the 1945 Constitution of the Republic
of Indonesia which explains that the procedures for forming laws are regulated by law. 7 The law in
question is the law regarding the formation of statutory regulations, namely Law Number 12 of 2011 jo.
Law Number 15 of 2019 jo. Law Number 13 of 2022. The a quo law was formed to create directed and
integrated legal development so that the formation of statutory regulations can be carried out based on
definite, standard and standard methods and methods that are binding on all law-forming institutions. 8
Legal formation, especially lawsJob Creation invites public attention. Its formation shows dynamics that
describe a condition of distance between the normative-ideal world and the reality of norm enforcement. In this
case, as a start, there is a new technique in forming legislative regulations called omnibus law. Maria Farida
Indrati said that the omnibus law is a new law that regulates various substances in order to simplify the various
laws that are still in force. 9 The novelty of this technique is different from the technique of drafting laws that is
known and used in Indonesia as regulated in the Law Number 12 of 2011 jo. Law Number 15 of 2019.
Apart from the drafting technique, the Job Creation Law also went through a problematic formation
process. Based on the Law on the Formation of Legislative Regulations, a law is born through a process of
planning, drafting, discussing, ratifying and promulgating. The Draft Law on Job Creation was submitted to
the House of Representatives on 7 February 202010 which was then continued with discussions until 5
October 2020. 11 Meanwhile Law Number 11 of 2020 concerning Job Creation was passed on 2 November
2020. The process of forming the law The invitation was considered to be hasty, ignoring the formation in
accordance with applicable provisions such as changes after joint approval with the House of
Representatives, not implementing the principle of openness, and not even properly involving public
participation.
The polemic against the birth of the Job Creation Law does not just stop. The public utilizes the organ
of judicial power, namely the Constitutional Court, to display its function as guardian of the constitution,
protector of human rights and protector of democracy. 12 This legal product, which was deemed to have
failed, was tested against the 1945 Constitution of the Republic of Indonesia at the Constitutional Court.
The request for review of the Job Creation Law resulted in Constitutional Court Decision Number 91/PUU-
XVIII/2020 which in its ruling stated that the a quo law was contrary to the 1945 Constitution of the Republic of
Indonesia and did not have conditionally binding legal force as long as it was not interpreted and no
improvements were made in it. 2 years from the time the decision is pronounced.13 This means that the a quo
decision requires the creators of the Job Creation Law to make improvements within a period of 2 years by
taking into account the applicable legal provisions so that they do not conflict with the constitution and have
binding legal force.

7
Indonesia, "The 1945 Constitution of the Republic of Indonesia" (1945).
Indonesia, "Consideration of Law Number 12 of 2011 concerning the Formation of Legislative Regulations" (2011).
8

9
Maria Farida, “'Omnibus Law', the Universal Sweep Law?,” Kompas.com, 4 January 2020, accessed 7 May
2023,https://www. kompas.id/baca/opini/2020/01/04/omnibus-law-uu-sapu-jagat.
10
President of the Republic of Indonesia, "Presidential Letter on Job Creation Bill.Pdf" (Jakarta, 2020), accessed 7 May
2023, https://www.dpr.go.id/dokakd/document/BALEG-RJ-20200605-095925-8502.pdf.
11
House of Representatives of the Republic of Indonesia, "RUU Concerning Job Creation (Omnibus Law)," DPR RI, 2020,
accessed 7 May 2023,https://www.dpr.go.id/uu/detail/id/442.
12
Nabitatus Sa'adah, "The Constitutional Court as a Guardian of Democracy and the Constitution, Especially in Carrying
out Constitutional Review," Administrative Law and Governance Journal 2, no. 2 (2019): 235–47, https://doi.
org/10.14710/alj.v2i2.235-247.
13
Constitutional Court of the Republic of Indonesia, "Constitutional Court Decision Number 91/PUU-XVIII/2020"
(Jakarta, 2020).

98
 The Job Creation Law was born as a political product14 due to the strong will of the law-forming
institutions. This opinion is strengthened by the national legislative program Draft Law amending Law
Number 12 of 2011 on 7 December 2021. Furthermore, on 16 June 2021, there was the promulgation of
Law Number 13 of 2022. 15 The existence of the a quo law , as if to answer technical problems and the
process of forming the Job Creation Law. However, on 30 December 2022, the Government stipulated a
Government Regulation in Lieu of Law Number 2 of 2022 which was later stipulated as Law Number 6 of
2023.16
Law, in a democratic legal state, is crucial with all its noble functions and goals. The glory that is in line
with achieving the country's goals is something that society desires. The existence of the principle of a
democratic rule of law is also included in the dimension of law formation. The explanation of the dynamics
of the formation of the Job Creation Law above is a problematic matter that attracted the author's attention
to study it. Therefore, in this article we will discuss 2 (two) things, namely, 1) regarding the formation of
laws and regulations in Indonesia; 2) regarding the problematic nature of the job creation law, from the
perspective of the formation of legislative regulations and a democratic rule of law.
The research method in this paper is qualitative research with a normative legal approach which places
law as a building block for a system of norms. 17 To answer and analyze the author uses a sta tutory
regulation approach to examine existing legal problems. The data sources used are secondary data from
literature studies, statutory regulations and expert opinions.

B. Discussion

B.1. Formation of Legislation in the Indonesian Democratic Rule of Law

The welfare of the people as the goal of the Indonesian state, is realized through the establishment of
laws that regulate multi-sectors of life. This correlates with the role of the state and law to achieve
prosperity. The essence of law is that it can lead society to a dimension of prosperity, which Jeremy
Bentham calls happiness. 18 As for the state, its main function is to form law. This function is realized by
forming laws and regulations for the implementation of government and a prosperous community life.
In the context of legislative science, Burkhadt Krems divides it into three, namely legislative processes,
methods and techniques. Meanwhile, A. Hamid S. Attamimi, quoting Juridish Woordenboek, said that
legislation has two meanings, first is the process of forming state regulations from the highest to the lowest
type. Second, legislation means the entire regulatory product of the country.19
14
This is as stated by Mahfud MD that law is a political product. In this case, the law has a character that is co lored by
the political configuration behind it. Mahfud MD, "Political and Legal Struggle in Indonesia" (Yogyakarta: Gema Media,
1999).
15
Constitutional Court of the Republic of Indonesia, “Constitutional Court Decision Number 69/PUU-XX/2022” (Jakarta,
2022).
Public Relations of the Constitutional Court, "Perpu on Job Creation is Deemed to Not Fulfill the Requirements of a
16

Compelling Urgency," Constitutional Court (Jakarta, 2023), 19 January 2023, accessed 8 May
2023,https://www.mkri.id/index.php?page=web. News&id=18845.
17
Saifullah, "Typology of Legal Research (History, Paradigms and Thoughts of Figures in Indonesia)", 1st ed. (Bandung:
Refika Aditama, 2018).
18
Yohanes Suhardin, “RoleState and Law in Eradicating Poverty by Realizing General Welfare," Journal of Law &
Development 42, no. 3 (2012): 302, https://doi.org/10.21143/jhp.vol42.no3.274.
19
Zaka Firma Aditya and M. Reza Winata, "Reconstructing the Hierarchy of Legislative Regulations in Indonesia," State
of Law 9, no. 1 (2018): 120.

99
 Legislative regulations are written rules formed by authorized institutions, formed through standardly
established procedures. The formation of statutory regulations refers to Law Number 12 of 2011 jo. Law Number
15 of 2019 jo. Law Number 13 of 2022. The a quo regulation regulates the principles, techniques, stages and
community participation in the formation of statutory regulations.
Sudikno Mertokusumo stated that legal principles are not concrete regulations, but fundamental
thoughts that are general in nature and are the background for concrete regulations such as statutory
regulations.20According to Philipus M Hadjon, the function of principles in the formation of good legislation
is used as a basis for testing in the formation of legal rules and testing of applicable legal rules. 21
Article 5 of Law Number 12 of 2011 states the principles that must be followed in the formation of statutory
regulations, including: (i) clarity of objectives; (ii) appropriate forming institutions; (iii) correspondence between
type, hierarchy and content material; (iv) can be implemented; (v) effectiveness and usefulness; (vi) clarity of
formulation; and (vii) openness.
In its formation, statutory regulations go through planned and coordinated stages. As for the law, it goes
through the following stages: 23
a. Planning
At this stage, it is carried out in the national legislation program in which a list of draft laws is prepared,
one of which is based on the aspirations and legal needs of the community. This draft law contains material
that is regulated based on the results of studies and harmonization contained in academic texts.
b. Drafting
The preparation of the national legislative program is carried out by the House of Representatives and
the Government. In this preparation, the People's Representative Council is coordinated by its apparatus
which handles the field of legislation by considering proposals from factions, commissions, members of the
People's Representative Council, Regional Representative Council, and/or the public. Meanwhile, within the
Government, it is coordinated by the Minister who handles government affairs in the legal sector. The results
of the preparation of the national legislation program are agreed and determined in the plenary meeting of
the House of Representatives.
c. Discussion
The House of Representatives together with the President or Minister are tasked with discussing the
draft law. This discussion was carried out at two levels of discussion. Level I discussions in commission
meetings, joint commission meetings, legislative body meetings, budget body meetings, or special
committee meetings. Activities carried out at level I are introductory deliberations, discussion of
problem inventory lists, and delivery of mini-opinions.
Level II discussions in plenary meetings. Decision making is carried out at level II discussions with the
following activities: (i) submission of reports regarding the process, opinions of mini factions and the Regional
Representative Council, results of level I discussions; (ii) statements of approval or rejection from each faction
and member; and (iii) conveying the President's final opinion by the assigned Minister.
d. Endorsement
Draft laws that have been jointly approved by the House of Representatives and the President are
submitted by the Leadership of the House of Representatives to the President to be ratified into law.

20
Sudikno Mertokusumo, "Knowing the Law with an Introduction", 4th ed. (Yogyakarta: Liberty, 1999).
21
Arif Awangga, "Legislative Drafting Techniques", 1st ed. (Bandung: CV Scholar Press, 2020). 22Indonesia, "Law
Number 12 of 2011 concerning the Formation of Legislative Regulations" (2011). 23Indonesia.

100
e. Invitation
The promulgation stage is carried out so that everyone knows that a law has been passed by placing it
in the state gazette, supplement to the state gazette, and the state gazette.

B.2. Problems of the Job Creation Law: Study from the Perspective of the Formation of
Legislative Regulations and a Democratic Rule of Law

The explanation in the previous sub-chapter is an idea-normative dimension which contains aspects of
necessity in its implementation, however empirically there are several laws and regulations which have been
formed problematically, one of which is the Job Creation Law. The a quo law was formed using the omnibus law
technique. The technique used to deal with the problem of too many regulations (over regulation). 24 Patr ick
Keyzer said that omnibus law means all or for everything, thus omnibus law is a law that covers a number of
diverse or unrelated topics. In loose translation, omnibus law is a law that covers a number of diverse and
unrelated topics.25
The a quo law formation technique, proposed by Bayu Dwi Anggono, has several weaknesses, such as
pragmatic and undemocratic tendencies, limited space for participation, and reduced aspects of
thoroughness and caution. 26 Techniques transplanted from countries with common law systems. This law
is faced with social delegitimization. This can be seen starting from the massive rejection of the Job Creation
Law by several elements of society which then led to the review of the law at the Constitutional Court.
The birth of the Constitutional Court as a child of reform shows that Indonesia is a modern legal state
that has judicial power. Its existence is a consequence of the principle of constitutional supremacy to
guarantee the conformity of lower legal rules. Thus, laws that conflict with the constitution must be
declared to have no binding legal force.
The Constitutional Court, as an independent state institution, has the authority as explained in Article 24C
paragraph (1) of the 1945 Constitution of the Republic of Indonesia. One of its authorities is to review laws
against the Constitution. As a judicial institution, the Constitutional Court also issues legal products, namely
decisions that are final and binding. This means that this institution of judicial power is the first and last resort.
The constitutional authority to interpret and monitor the purity of the constitution is realized by
reviewing the Job Creation Law. The a quo law was tested at the Constitutional Court on the grounds that
the omnibus law method was unclear, the omnibus law method was not recognized in the Law on the
Formation of Legislative Regulations, the content material had been changed after approval, and was
contrary to Article 22A of the Constitution of the Republic of Indonesia. 1945 and the princip les of law
formation.27
Based on the request for review of the Job Creation Law, the Constitutional Court issuedDecision
Number 91/PUU-XVIII/2020 which states that the a quo law is contrary to the 1945 Constitution of the
Republic of Indonesia and does not have conditionally binding legal force as long as it is not

24
Antoni Putra, "Implementation of Omnibus Law in Regulatory Reform Efforts," Indonesian Legislation Journal 17, no.
1 (2020): 1, https://doi.org/10.54629/jli.v17i1.602.
25
Patrick Keyzer, "The Indonesian Omnibus Law: Opportunities and Challenges" (Public Lecture, 2020).
26
Bayu Dwi Anggono, "Omnibus Law as a Law Formation Technique: Adoption Opportunities and Challenges in the
Indonesian Legislative System," RechtsVinding 9, no. 1 (2020): 17–37.
27
Rofi Wahanisa and Ahmad Habib Al Fikry, “DISCOMPLIANCEFORMATION OF LEGAL REGULATIONS: ISSUANCE OF
PRESIDENTIAL REGULATION NUMBER 113 OF 2021 CONCERNING THE STRUCTURE AND ORGANIZATION OF LAND
BANK AGENCY," RechtsVinding 11, no. 113 (2022): 117–33.

10
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JournalINDONESIAN LEGISLATIONVol 20 No. 4 - December 2023:
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means no improvements have been made within 2 years of the decision being pronounced. Apart from that,
the Court ordered legislators to carry out improvements within a maximum period of 2 years. If
improvements are not made within this time period, the a quo law will become permanently
unconstitutional. 28
The a quo decision is based on several legal considerations such as: (i) the new naming of the a quo law
is not in accordance with the standard formula for the formation of laws as regulated in Law Number 12 of
2011. In this regard, the formulation of the principles and objectives in the a quo law creates uncertainty;
(ii) the omnibus law technique used to simplify several laws is a technique that is difficult to understand as
a change, new law or repeal; (iii) changes to the a quo draft law after approval by the House of
Representatives and the President; and (iv) apart from not being based on the principle of clarity of
formulation and objectives, the a quo law does not create space for community participation so that the
principle of openness is not fulfilled.29
The a quo decision then leads to an analysis of the orderly procedures and quality of the stages of
forming the a quo law based on the 1945 Constitution of the Republic of Indonesia and the Law on the
Formation of Legislative Regulations. It can be explained that first, the problem of omnibus law as a
technique for forming a quo laws. In Indonesia's civil law legal system which prioritizes codification of
regulations to overcome problems of overlapping and partiality of regulations,30 the omnibus law
technique has never been heard of, let alone applied in the formation of laws.
It is true that the dichotomy of the common law and civil law legal systems in its development has
become less rigid and more fluid. However, as a democratic rule of law, the formation of laws must still be
based on the applicable law, namely the Law on the Formation of Legislative Regulations.
It can be seen that there are differences between the techniques for forming ordinary laws and
omnibus laws. In Indonesia, the technical aspects of forming laws, amending or revoking certain laws
generally use the technique of one proposed law change to change or revoke only one law and there are no
changes to the substance of other laws. The omnibus law used is a technique for changing, repealing and
enforcing several statutory provisions through just one proposed law formation.
Furthermore, in the theory of the hierarchy of legal norms, there are two types of hierarchy, namely
formal and functional hierarchies. It can be explained that the formal hierarchy is a hierarchy of legal norms
as stated by Hans Kelsen, known as stufenbau des recht. Kelsen stated that legal norms are tiered and
layered in a hierarchy, in this case legal norms with a lower hierarchy originate from legal norms with a
higher hierarchy, and so on up to basic norms or grundnorms.31
The above theory gave rise to principles and principles which were then formalized in Law Number 12 of
2011. This can be found in Article 7 paragraph (1) of the a quo law concerning the hierarchy of laws and
regulations in Indonesia. In terms of legitimacy, the omnibus law technique has not been regulated in Law
Number 12 of 2011. Therefore, this technique can be said to be a new technique displayed in legislative practice
in Indonesia.

28
Republic of Indonesia, “Constitutional Court Decision Number 91/PUU-XVIII/2020.”
29
Republic of Indonesia.
30
Adhi Setyo Prabowo and et al, "Legal Politics of Omnibus Law in Indonesia," Pamator 13, no. 1 (2020): 4.
31
Jimly Asshiddiqie and M Ali Safa'at, "Hans Kelsen's Theory of Law", First (Jakarta: Constitution Press, 2006).

102
 The 1945 Constitution of the Republic of Indonesia as a type of legislation with the highest hierarchy,
in principle has regulated the framework for the formation of laws. 32 The Law on the Formation of
Legislation is a delegation from Article 22A of the 1945 Constitution of the Republic of Indonesia. In
Appendix I of the Law Law Number 12 of 2011 has regulated standard standards for the formulation of
statutory titles. In the event that the law in question constitutes an amendment, then the name of the
amendment law is added with the phrase above amendment in front of the title of the law to be amended.
Meanwhile, the Job Creation Law is an amendment to 77 laws and the repeal of 1 law.33
Regarding the revocation of the law, refer to attachment II of Law Number 12 of 2011 which
determines the standard format, namely the name of the revocation law, adding the word revocation before
the title of the law, but placing the revocation in the closing provisions section is carried out when the law
is revoked. -laws due to new laws being formed. 34 The Job Creation Law does not formulate the repeal of
the law in accordance with this systematic, but instead places it in the articles of the provisions of the law
that have undergone changes.
The new naming of the Job Creation Law, which is followed by the formulation of norms of principles,
objectives, scope and are manifested in chapters and articles, makes the a quo law not in accordance with
the standard formulation of law formation which is based on the 1945 Constitution of the Republic of
Indonesia. the emergence of uncertainty about the principles and objectives of the law. Coherence is the
principle of clarity in the formulation of law formation in Law Number 12 of 2011. That there is a will in
the law to fulfill the technical requirements for drafting, systematics, terms and legal language that do not
give rise to interpretation. 35 Therefore, the omnibus law technique cannot be used before it is regulated
in the Law on the Establishment of Legislative Regulations. Second, the issue of community participation
in the formation of the Job Creation Law.
As a form of democratic rule of law, the formation of laws must be participatory. Community participation
in this context is a fulfillment of the mandate of the principle of popular sovereignty in the 1945 Constitution
of the Republic of Indonesia. Not only that, as a legal state that guarantees and protects human rights, the
constitution also mandates providing opportunities for citizens to participate in government, building
society and the state. . This is as stated in Article 27 paragraph (1) and Article 28C paragraph (2) of the
1945 Constitution of the Republic of Indonesia.36
Legislative practices that close space for participationsociety in discussing the contents of the law is a
violation of the principle of popular sovereignty. Apart from eliminating democratic nuances, the status quo
also takes away human rights guaranteed in Article 28D paragraph (1) and paragraph (3) of the 19 45
Constitution of the Republic of Indonesia. It is explained that everyone has the right to obtain guarantees,
fair legal certainty and equal treatment in before the law.37 This human right includes the right of every
person to have their aspirations heard and the obligation for the state to implement the principle of
openness in the formation of legislative regulations.38

32
Indonesia, Preamble to Law Number 12 of 2011 concerning the Formation of Legislative Regulations.
33
Republic of Indonesia, “Constitutional Court Decision Number 91/PUU-XVIII/2020.”
34
Indonesia, "Consideration Considering Law Number 12 of 2011" (2011).
35
Indonesia, "Article 5 Letter f of Law Number 12 of 2011 concerning the Establishment of Legislative Regulations"
(2011).
36
Indonesia, the 1945 Constitution of the Republic of Indonesia.
37
Indonesia.
38
Salahudin Tunjung Seta, "COMMUNITY RIGHTS IN THE FORMATION OF LEGISLATION,"
Indonesian Legislation 17, no. 2 (2020): 158.

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Nonet and Selznick stated that in the formation of laws, community participation is important and must
be present in a participatory formation process by inviting various elements of society, both individuals
and groups. Apart from its participatory nature, law formation must also be aspirational, origina ting from
the will of the community.39
In its formation, the Job Creation Law violated the principles of openness and non-participation. The a quo
law was formed through discussion stages that did not involve various elements of society who were related
and had an interest in its implementation. Openness is also a principle that is violated in the formation of the a
quo law, that there are changes after mutual agreement.40
In connection with the above, the Constitutional Court in its decision stated that the formation of laws,
apart from having to comply with the principle of legislative due process, also needs to implement
meaningful community participation. Meaningful participation is carried out especially for community
groups that are directly affected or have concerns about the draft law. This is done by fulfilling three
conditions, namely the right to have one's opinion heard or the right to be heard, the right to have one's
opinion considered or the right to be considered, and the right to receive an explanation or answer to the
opinion given or the right to be explained.41
The Constitutional Court issued a decision that awakened the spirit of a democratic rule of law. Law,
or what can be specifically called legislation, is one of the means to realize state goals. The urgency of the
formation of the a quo law can be seen in the considerations considering that it is to improve the welfare
of the people through ease of doing business, increasing investment, and accelerating national strategic
projects. 42 However, a law with this noble aim does not mean that it can be formed without complying
with the principles and technical provisions for the formation of statutory regulations. This means that
laws must also continue to be formed in an orderly manner, not haphazardly, not hastily, and pay
attention to meaningful community participation. The issue regarding the Job Creation Law seems to have
not yet reached an end. The promulgation of Law Number 13 of 2022 concerning the Second Amendment
to Law Number 12 of 2011 concerning the Formation of Legislative Regulations becomes a new chapter
which shows the accommodation of the Constitutional Court Decision Number 91/PUU-XVIII/2020. This
can be seen from the provisions regarding the omnibus technique described in Article 42A. In the a quo
article it is explained that the use of this method must be specified in the planning document. More on this
later
regulated in attachment II concerning techniques for drafting laws.43
Furthermore, in the a quo law there are also changes to Article 5 letter g which concerns the principle of
openness. In the explanation of Article 5 letter g, it is explained that the principle of openness is at the heart of
every stage of law formation, including monitoring and reviewing by providing access to the public who have an
interest and are directly affected to obtain information and/or provide input both verbally and in writing in a
manner network or outside the network.44 Changes to the provisions of the a quo article are also related to
changes in Article 96 concerning public participation in the formation of laws.
39
A Ahsin Thohari, "Reorienting the Legislative Function of the Representative Council: Efforts Towards Responsive
Laws," Indonesian Legislation 8, no. 4 (2011).
40
Agus Sahbani, "Change After Mutual Agreement, the Fate of the Job Creation Law in the Edge?," Law Online,
30 October 2020, accessed 10 May 2023,https://www. Hukumonline.com/berita/a/berubah-cepat-persecepatan-
together--the-fate-of-work-creation-on-the-edge-lt5f9aaf3e042a4.
41
Republic of Indonesia, “Constitutional Court Decision Number 91/PUU-XVIII/2020.”
42
Indonesia, "Consideration Considering Law Number 11 of 2020 concerning Job Creation" (2020).
Indonesia, "Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the
43

Formation of Legislative Regulations" (2022).

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 The existence of Law Number 13 of 2022 is a paradoxical thing. On the one hand, there is a pattern in
the formation of laws in Indonesia, none other than the issue of minimal public participation. The legislators
are considered to have taken the same legislative path and plunged into the same abyss as when forming
the Job Creation Law. Signs regarding community participation were again ignored. The emergence of Law
Number 13 of 2022 is a bad thing as a result of neglecting meaningful participation in the community.
On the other hand, Law Number 13 of 2022 shows an adaptive and responsive legal transformation.
Accommodating the provisions regarding the omnibus technique and implementing the principle of
openness can be said to be a form of implementing Constitutional Court Decision Number 91/PUU-
XVIII/2020. The correlation is that there is hope for the a quo law to be used as a legal basis for improving
the Job Creation Law in accordance with the time period provisions as ordered by the Court in the a quo
decision. However, hopes were dashed by the existence of a Government Regulation in Lieu of L aw Number
2 of 2022 concerning Job Creation.
Article 1 number 4 of Law Number 15 of 2019 explains that "government regulations in lieu of laws
are statutory regulations stipulated by the President in the event of a compelling emergency. 45" In
connection with this provision, preamble letters b and letter f explain that the consideration of the
Government Regulation in Lieu of the a quo Law is the existence of challenges, the global economic crisis,
and to implement the Constitutional Court Decision Number 91/PUU-XVIII/2020.46
Through a formal review of the Job Creation Law, the Court issued a decision stating that the a quo law
was conditionally unconstitutional as stated above. In this case, the issue of community participation in the
formation of the a quo law was also taken into consideration in the decision. Critical to the existence of a
Government Regulation in Lieu of a quo Law to implement the Court's decision, is that correct legal logic is
not touched upon. This is based on the fact that government regulations replace laws through a process of
formation without any public participation. The narrowness of the participatory space can also be seen
from the involvement of the House of Representatives which only gives approval or not as explained in
Article 52 paragraph (3) of Law Number 12 of 2011.
Furthermore, related to the legal vacuum regarding the omnibus technique used in the formation of
laws, the authorized institution has followed up in Law Number 13 of 2022. Thus, it can be said that
choosing a shortcut by forming a government regulation to replace the a quo law is precisely a form of
ignoring the a quo decision regarding the need to make improvements to the Job Creation Law within a
period of 2 (two) years. This was then clarified by the passing of a government regulation replacing the a
quo law into law, namely Law Number 6 of 2023.
This legislative issue shows the non-compliance of the creators of the Job Creation Law and the
President's disobedience to the decision of the Constitutional Court regarding the existence of a
Government Regulation in Lieu of the Law on Job Creation. Due to the possibility of this problem escalating,
the Constitutional Court must remain the guardians of the constitution which maintains the purity of the
constitution and upholds the principles of a democratic rule of law in issuing decisions, especially judicial
review of the 1945 Constitution of the Republic of Indonesia.

44
ndonesia.
45
Indonesia, "Law Number 15 of 2019 concerning Amendments to Law Number 12 of 2011 concerning the Formation
of Legislative Regulations" (2019).
46
Indonesia, "Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation" (2022).

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96-108

C. Closing

C.1. Conclusion

Based on the description of the discussion above, the conclusions that can be given by the author:
1) In Indonesia's democratic rule of law, the formation of laws is based on Law Number 12 of 2011 and
its amendments. The formation of good laws must comply with and be in accordance with the
principles, techniques, stages, and fulfill community participation as regulated in the a quo law.
2) The formation of the Job Creation Law to the enactment of a Government Regulation in Replacement
of the Job Creation Law into Law shows legislative problems ranging from the omnibus technique to
the lack of meaningful community participation. This issue violates the legal order of forming laws and
the President's disobedience to Constitutional Court Decision Number 91/PUU -XVIII/2020.

C.2. Suggestion
Suggestions based on the formulation of the problems discussed:
First, authorized institutions in the formation of laws and regulations need to pay attention to and comply
with the legal provisions applicable in the formation of laws. The aim is to create good laws and realize the values
of justice, benefit and certainty.
Second, legislators need to implement meaningful community participation withboth as a form of legal
order, the realization of the principles of a democratic rule of law, and implementing the Constitutional
Court Decision Number 91/PUU-XVIII/2020.

106
 Bibliography
Anggono, Bayu Dwi. "Omnibus Law as a Technique for Forming Laws: Opportunities for Adoption and
Challenges in the Indonesian Legal System." Rechts Vinding 9, no. 1 (2020): 17–37.

Asshiddiqie, Jimly, and M Ali Safa'at. Hans Kelsen's Theory of Law. First. Jakarta: Constitution Press,
2006.

Awangga, Arif. Legislative Design Techniques. 1st ed. Bandung: CV Scholar Press, 2020. Azhary. Indonesian

Rule of Law. Jakarta: UI Press, 1995.

Farida, Maria. "'Omnibus Law', Law to Sweep the Universe?" Kompas. com, 4 January 2020, accessed 7
May 2023,https://www.kompas.id/baca/opini/2020/01/04/omnibus-law-uu-sapu-jagat.

Indonesia. Precautions Considering Law Number 12 of 2011 (2011).

———. Considerations Considering Law Number 11 of 2020 concerning Job Creation (2020).

———. Precautions to Law Number 12 of 2011 concerning the Formation of Legislative Regulations
(2011).

———. Article 5 letter f Law Number 12 of 2011 concerning the Formation of Legislative Regulations (2011).

———. Substitute Government RegulationLaw Number 2 of 2022 concerning Job Creation (2022).

———. The 1945 Constitution of the Republic of Indonesia (1945).

———. Law Number 12 of 2011 concerning the Formation of Legislative Regulations (2011).

———. Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011
concerning the Establishment of Legislative Regulations (2022).

———. Law Number 15 of 2019 concerning Amendments to Law Number 12 of 2011 concerning the
Formation of Legislative Regulations (2019).

Keyzer, Patrick. “The Indonesian Omnibus Law: Opportunities and Challenges.” 2020.

Constitutional Court, Public Relations. "The Job Creation Perpu is considered not to meet the requirements
of a compelling emergency." Constitutional Court. Jakarta, 19 January 2023, accessed 8 May
2023.https://www.mkri.id/index. php?page=web.News&id=18845.

MD, Mahfud. Political and Legal Struggle in Indonesia. Yogyakarta: Gema Media, 1999. Mertokusumo,

Sudikno. Getting to Know the Law An Introduction. 4th ed. Yogyakarta: Liberty, 1999.

Muhshi, Adam. Constitutional Theology: Human Rights Law on Religious Freedom in Indonesia.
Yogyakarta: LKiS Pelangi Aksara, 2015.

Son, Antoni. "Implementation of the Omnibus Law in Regulatory Reform Efforts." Indonesian Legislation
Journal 17, no. 1 (2020): 1. https://doi.org/10.54629/jli.v17i1.602.

Republic of Indonesia, House of Representatives. "RUU Concerning Job Creation (Omnibus Law)." DPR RI,
2020, accessed 7 May 2023.https://www.dpr.go.id/uu/detail/id/442.

Republic of Indonesia, Constitutional Court. “Constitutional Court Decision Number 69/PUU-XX/2022.”

Jakarta, 2022.

———. “Constitutional Court Decision Number 91/PUU-XVIII/2020.” Jakarta, 2020.

Republic of Indonesia, President. “Letter from the President of the Job Creation Bill.Pdf.” Jakarta, 2020,
accessed 7 May 2023.

107
JournalINDONESIAN LEGISLATIONVol 20 No. 4 - December 2023:
96-108

https://www.dpr.go.id/dokakd/document/BALEG-RJ-20200605-095925-8502.pdf.

Rosseau, Jean Jacques. Discourse on Political Economy and The Social Contract. NewYork: Oxford University
Press, 1994.

Sa'adah, Nabitatus. "The Constitutional Court as a Guardian of Democracy and the Constitution, Especially
in Carrying out Constitutional Review." Administrative Law and Governance Journal 2, no. 2 (2019):
235–47. https://doi.org/10.14710/alj.v2i2.235-247.

Sahbani, Agus. “Change After Mutual Agreement, Fate of Job Creation Law Hanging in the End?” Law Online,
30 October 2020, accessed 10 May 2023.https://www. Hukumonline.com/berita/a/berubah- after-
mutual-agreement-the-fate-of-work-creation-is-on-the-edge-lt5f9aaf3e042a4.

Saifullah. Legal Research Typology (History, Paradigms and Thoughts of Figures in Indonesia). 1st ed.
Bandung: Refika Aditama, 2018.

Setyo Prabowo, Adhi, and et al. "The Legal Politics of Omnibus Law in Indonesia." Pamator 13, no. 1 (2020):

4. Suhardin, Yohanes. “The Role of the State and Law in Eradicating Poverty by Realizing
General Welfare.” Journal of Law & Development 42, no. 3 (2012): 302. https://doi.org/10.21143/
jhp.vol42.no3.274.

Thohari, A Ahsin. “Reorienting the Legislative Function of the Representative Council: Efforts Towards
Responsive Laws.” Indonesian Legislation 8, no. 4 (2011).

Tunjung Seta, Salahudin. “PUBLIC RIGHTS IN THE FORMATION OF LEGAL REGULATIONS

INVITATION." Indonesian Legislation 17, no. 2 (2020): 158.

Wahanisa, Rofi, and Ahmad Habib Al Fikry. “NON-COMPLIANCE WITH LEGAL REGULATIONS: ISSUANCE
OF PRESIDENTIAL REGULATION NUMBER 113 OF 2021 CONCERNING THE STRUCTURE AND
ORGANIZATION OF LAND BANK AGENCY.” Rechts Vinding 11, no. 113 (2022): 117–33.

Widayati. Rule of Law, Constitution, & EstablishmentLegislation. Semarang: Unissula Press, 2016.

Zaka Firma Aditya and M. Reza Winata. "Reconstructing the Hierarchy of Legislative Regulations in Indonesia."
State of Law 9, no. 1 (2018): 120.

108