Applicability of Law Number 11 of 2020 Concerning Job Creation After The Constitutional Court Decision Number 91/PUU-XVIII/2020

With the issuance of the decision of Constitutional Court Number 91/PUU-XVI-II/2020, the DPR and the government, as lawmakers, are obliged to comply with it. Because the decision of the Constitutional Court is a legal decision that all parties must obey without exception, it is necessary to obtain an assessment, first, of how the law applies. No. 11 of 2020 after the decision of Constitutional Court Number 91/PUU-XVIII/2020. Second, how are the DPR and the government’s efforts to respond to changes in Law no. 11 of 2020 after Constitutional Court Decision Number 91/PUU-XVIII/2020? The research method used is normative legal research, namely library research, whose sources use secondary data in the form of primary, secondary, and tertiary legal materials. The results of the study on the Constitutional Court Decision Number 91/PUU-XVII/2020, that Law No. 11 of 2020 is still valid. However, the House of Representative/DPR and the Government are given time to fix it within a period of two years. If corrections are not made within this time period, the law will become permanently invalid. In fulfilling this, first amendments were made to Law Number 12 of 2011, so that it became Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning Formation of Legislation. The amendment has included the omnibus method as the basis for forming laws and regulations. Based on Law Number 13 of 2022, the DPR and the Government made improvements to Law Number 11 of 2020. The results of the study show that by the decision of the Constitutional Court Number 91/PUU-XVIII/2020, which grants the applicant’s request conditionally, the DPR and the government are obliged to amend Law no. 11 of 2020 concerning Job Creation since the decision of the Constitutional Court aquo was read. If, within 2 (two) years, the DPR and the government cannot make improvements to Law No. 11 of 2020, the law becomes permanently uncon-stitutional. On that basis, law. No. 11 of 2020 after the decision of the Constitutional Court Number 91/PUU-XVIII/2020 is still valid unless the DPR and the government do not make improvements to Law No. 11 of 2020 within 2 (two) years, then the law becomes permanently invalid. Therefore, in response to the Constitutional Court’s decision, the DPR and the government are currently trying to amend Law no. 12 of 2011 concerning the Establishment of Legislation. In this change, the omnibus law method is explicitly mentioned as one of the methods for forming laws.


A. Introduction
Jokowi, in his inauguration speech as president of the Republic of Indonesia before the People's Consultative Assembly, on October 20, 2019, proposed the omnibus law method in overcoming hyper regulations, which have so far been seen as hindering the development of national development. Regarding Jokowi's suggestion, it turned out that many people and legal experts were surprised 217  to hear it because the omnibus law method is not well known in legal politics as in Law no. 12 of 2011 concerning the Formation of Legislation. In addition, some think that the omnibus law is adhered to in countries adhering to the "common law" tradition, while Indonesia adheres to the "civil law" tradition. Indonesia is a follower of "civil law." The omnibus law method is not suitable to be used to form laws. Therefore, it must be rejected.
This rejection was evident when the government submitted the Job Creation Bill to the People's Representative Council (abbreviated DPR), which changed 76 laws to become one law using the omnibus law. Among those who refused were the All Indonesian Workers Union (SPSI), the Action Unit for Saving Indonesia (KAMI), the Democratic Party, the Prosperous Justice Party, and other elements of society. This rejection can also be seen from the submission of a formal review of Law No. 11 of 2020, as stated in the Constitutional Court Decision Number 91/PUU-XVIII/2020, November 25, 2020. Where the applicant submitted a formal review based on the procedure for establishing Law No. 11 of 2020 needs to follow the procedures referred to in Article 22A of the 1945 Constitution. The Petitioners stated this in their petition, which, among other things, on pages 28-29 of the Constitutional Court Decision Number 91/PUU-XVIII/2020, November 25, 2020. 1 Based on the arguments stated above, it is clear that the formal review was carried out due to the formation of Law no. 11 of 2020 not following Article 22A of the 1945 Constitution. The request was then accompanied by various pieces of evidence, expert statements, and other evidence submitted as evidence before the court. Regarding the Petitioner's argument, the Respondent, namely the DPR and the President, denied this, accompanied by evidence, expert testimony, and other evidence before the court. Then, in its decission, the Panel of Judges of the Constitutional Court considered all of evidences, expert testimony, and other evi- dence presented by the Petitioner and the Respondent before the trial as a basis for deciding the case. 2 What is interesting about the verdict, as stated above, among other things, is the clause in verdict number 3, which states "the formation of Law Number 11 of 2020 concerning Job Creation, is contrary to the 1945 Constitution of the Republic of Indonesia and does not have conditionally binding legal force as long as it does not mean "revisions have not been made within 2 (two) years since this decision was pronounced". The sub-clause in the ruling which, among other things, states "that Law No. 11 of 2020 becomes invalid because the procedure for its formation is said to be contrary to the 1945 Constitution, "the meaning becomes blurred when it is linked to the next clause which states, that: "... and does not have conditionally binding legal force as long as it does not mean "no correction is made within the 2 (two) years since this decision was pronounced. The problem is increasing with the existence of a decision in number 4, which states, among other things, that "...Declares Law Number 11 of 2020 concerning Job Creation is still valid until repairs are made following the time limit specified in this decision. The Constitutional Court Decision Number 91/PUU-XVIII/2020, 25 November 2020, is interesting to study because, on the one hand, it states that law No. No. 11 of 2020 was declared invalid because the procedure for its formation was declared contrary to the 1945 Constitution. However, on the other hand, it is still valid, with the condition that the DPR and the President are given time to amend Law no. 11 of 2020 within 2 (two) years. If there is no improvement within 2 (two) years, Law no. 11 of 2020 becomes "permanently unconstitutional." Based on this, the question arises, first, how is the law enforceable? No. 11 of 2020 after the decision of Constitutional

B. Method
Following the identification of the problem as stated above, the research specification is descriptive research, and the type of research is normative legal research. The data studied were secondary in the form of primary, secondary, and tertiary legal materials, which were analyzed qualitatively.

Applicability of the Law. No. 11 of 2020 after the decision of the Constitutional Court Number 91/PUU-XVIII/2020
The applicability of Law no. 11 of 2020 after the decision of the Constitutional Court Number 91/PUU-XVIII/2020 became a serious debate among the people. Because on the one hand, some are of the view that with the issuance of the Constitutional Court decision Number 91/PUU-XVIII/2020, Law No. 11 of 2020 has been postponed until what was stated in the decision order can be fulfilled by the DPR and the President. However, on the other hand, the government continues to enforce Law no. 11 of 2020 and various regulations issued to implement it. Therefore, in response to these two views, I will first be stated the legal benefits of the applicability of Law No. 11 of 2020 at the implementation level.
Etymologically, legal expediency consists of two words: "benefit" and "law." In the Big Indonesian Dictionary, "benefit" comes from the word "benefit," defined as one use; avail; the donation is a lot for the poor; 2 profits; profit: -sales of cattle multiplied. Expediency is defined as «useful»; or «utility.» The word «useful» is defined as «there are benefits; useful; beneficial: sport is for health»; Based on the meaning of the word «benefit,» the word «benefit» is generally defined as «useful» or «beneficial.». 3 Based on the meaning of the word "usefulness," it can be said that "usefulness" is the use of something that can be felt. For example, "exercise is beneficial to health." Usually the word benefit is often used in economics. However, along with the rapid progress of science and technology and the development of a fast-moving global economy without boundaries, as well as the emergence of Covid-19, the mindset of legal experts has changed from normative to innovative, creative, and comprehensive.
It was related to "law," generally interpreted as a rule containing what can and cannot be done. In law, it is imprinted about the purpose of law formation: order and security, justice, truth, and expediency. So, with the existence of law, people can be free and feel comfortable in acting, creative, and protected in carrying out every activity. 4 However, several discussions also mentioned that there are three legal objectives, namely justice, benefit, and legal certainty.
Based on the opinion stated above, without neglecting other legal purposes, one of the legal objectives that have an essential meaning is the benefit of the law. This is following what Supriyono said, that expediency is an essential thing for a legal purpose. 5 In addition, Raju Moh. Hazmi said that expediency is the basis for finding justice. Justice is measured by expediency itself. The measure of justice is unfair to actions based on the principle of expediency. 6  is adequately enforced. Because as stated by Oksidelta Yanto, that law enforcement is a task carried out by law enforcement officials that must be carried out. 7 Although there is no single measure that can be used to measure this justice. However, justice is something that is pursued in law enforcement. 8 At the implementation level, in administering justice, the word justice is combined with legal protection so that the term "legal protection and justice" appears. This is, for example, mentioned in Article 24, paragraph (1) of the 1945 Constitution, which says that the court functions to uphold law and justice. Therefore, judges based on the provisions of the 1945 Constitution in adjudicating are enforcers of law and justice. As enforcers of law and justice, judges act independently or independently in carrying out their functions. The principle of independence or independence of judges in adjudicating cases must be adhered to and realized by judges in examining and deciding the cases they face. 9 Thus, the decision reflects legal protection and justice for all parties involved in the case. However, as stated by Romli Atmasasmita, that justice will not be realized if there is no legal certainty, and legal certainty will not be absolute if the law fails to function as a regulator of public order. 10 Romli Atmasasmita's opinion was inspired by Mochtar Kusumaatmadja's opinion, which essentially stated that law consists of principles, rules, processes, and institutions, which are the driving force for law in society to achieve the three objectives of the law. 11 In this case, Romli Atmasasmita emphasized that law enforcement must be carried out according to law. This opinion follows what was said by Oksidelfa Yanto, that laws and legal norms serve as guidelines in carrying out the law and processing a legal event. 12 For this reason, Jimly Asshiddiqie said later that in the law, there should be no reduced rights of the people except by law or based on law, and there should be no obligations imposed on the people except by law or based on a law act. 13 On that basis, H. Azis Syamsuddin then said that the rule of law confirms that the resulting legal products, laws, for example, not only have formal legitimacy but also substantially bind the public to submit to and obey the rules in the law (substantive legitimacy). 14 This opinion further emphasizes that the laws formed are the basis for society and state administrators to carry out various social and state life activities so that they do not clash with one another. However, for the law to be felt by the community, the law must be adequately enforced and correctly. This is what is then called the benefit of the law.
Related to the benefits of the law, Jeremy Bentham said that "By the principle of utility is meant that principle which approves or disapproves of every action whatsoeve,…". 15 Jeremy Bentham's thoughts, as stated above, according to Romli Atmasasmita, stated that obtaining justice focuses more on the benefit of most people even though other people/groups have to be sacrificed/harmed. The morality of justice is utility, which is often misused to become a reality that is often called, or applied utilitarianism, which is incompatible and even opposed to the principle of togetherness or mutual benefit. 16 What Jeremy Bentham and Romli Atmasasmita said above is the truth in the law. Where the benefit of the law is substantively regulated, it is essential to uphold it to give happiness to as many people as possible. As stated above, the mindset of legal benefits is to be realized through the issuance of Law no. 11 of 2020. Especially with the rapid progress of science and technology at this time, the emergence of a fast-moving global economy without boundaries, as well as the emergence of Covid-19 which not only caused a health crisis but also caused an investment, economic and other social crises, Renewable legal institutions are needed which are truly capable of creating happiness for the community and can be used as guiding principles in solving various problems and problems caused by this development. 17 In response to this, the omnibus law method was used 18 in forming Law no. 11 of 2020. This method was used in forming Law no. 11 of 2020, hoping that Law no. 11 of 2020 would provide the community with as much happiness as possible by creating more jobs. This is following what is said in the general explanation, which, among other things, says that: In addition to the objectives stated above, further in the general explanation, it is also said that: "To support the Job Creation strategic policy, arrangements are needed regarding administrative arrangements, which aim to facilitate the granting of business licenses in Indonesia." 20 Through the general explanation above, the purpose of establishing Law no. 11 of 2020 said. So, in the following general explanation, it is said that: Through the general explanation, as stated above, the purpose of establishing Law no. 11 of 2020 is to support investment and economic growth, which has slumped in Indonesia. Through Law no. 11 of 2020, there is a new paradigm in the legal politics of business licensing, which used to be challenging to obtain. However, with Law no. 11 of 2020, it is easy to obtain business licenses to support investment and economic growth in Indonesia. Because as stated by Ali Akbar Septiantoro et al., economic growth, which is more supported by investment than consumption, is considered to increase the productivity of a country. 22 This opinion shows the importance of investment in supporting the country's economic growth. However, at the implementation level, many domestic and foreign investors were disappointed due to the difficulty in obtaining business permits. As a result, many of these investors left or wanted to avoid investing in Indonesia. Hilda Swandani Prastiti said that the large number of foreign investments leaving Indonesia was proof that the label was not investment friendly for Indonesia. 23 Hilda Swandani Prastiti gave the example of Nissan Motor Co. Ltd, which closed its company in Indonesia and moved its factory to Thailand as Nissan's sole production center for the ASEAN market. Likewise, China in 2019 expanding its business outside of China, but none of them entered "...so in terms of the Petitioners' argument, which states that the process of drafting the Job Creation Law has violated the principles of forming good laws and regulations as stipulated in Law 12/2011, according to the Government, it is very wrong, incorrect and has no legal basis. 32 The government, in point 4 of its Petitum, page 248, also stated emphatically: "Declaring that Law Number 11 of 2020 concerning Job Creation is not contrary to the 1945 Constitution of the Republic of Indonesia.". 33 Regarding all the arguments, both those put forward by the Petitioners and the Respondent (DPR and the Government), accompanied by evidence, expert statements, and other evidence, all of them were considered by the Constitutional Court in its decision. Based on these legal considerations, the Constitutional Court in numbers 3 to 7 orders its decision as mentioned in the previous discussion, 34 becomes questionable about the applicability of Law no. 11 of 2020 after the aquo Constitutional Court decision came into effect. It is said so because if you only read the clause as referred to in the decision letter number 3, for example, it can be said that Law No. 11 of 2020 is no longer valid because the process of forming it was declared by the Constitutional Court to be contrary to the 1945 Constitution. However, if you read the following clause, which states that: "...and does not have binding legal force conditionally as long as it does not mean "no improvement is made in within 2 (two) years since this decision was pronounced", then Law no. 11 of 2020 is still valid. This is known from the fourth decision, which sta- That means that Law no. 11 of 2020 since the decision of the Constitutional Court aquo was read, will still be valid from the time it was read until a limit of 2 (two) years in the future. However, if within 2 (two) years, the DPR and the government are unable to make improvements to Law no. 11 of 2020, then Law no. 11 of 2020 becomes permanently invalid. In this case, the legislators are given 2 (two) years to amend Law no. 11 of 2020. Based on the abovementioned verdict, the Constitutional Court did not expressly state that Law No. 11 of 2020 does not apply. However, the DPR and the government are given 2 (two) years to fix it, and if within 2 (two) years the DPR and the government cannot fix it, then Law No. 11 of 2020 becomes permanently unconstitutional. However, the enactment of Law No. 11 of 2020 is biased by verdict number 7, which states "... suspending all actions/policies that are strategic and have wide-reaching impacts, and it is also not justified to issue new implementing regulations related to Law Number 11 of 2020 regarding Job Creation". That means, as long as it is being repaired, the government may not issue strategic policies to implement the provisions of Law no. 11 of 2020. Normatively, the values in law that are still valid must be implemented as long as the law has never been declared invalid or revoked. In the decision, there was no prohibition against carrying out all the implemen-ting regulations of Law no. 11 of 2020 before the Constitutional Court aquo decision was issued. Therefore, all the implementing regulations issued before the Constitutional Court decision aquo was issued are still valid and can be implemented. This is because there is nothing in the ruling of the Constitutional Court that states, "Revoke and declare as null and void all regulations that have been issued to implement Law No. 11 the Year 2020".

Efforts of the House of Representatives (DPR) and the President to Respond to Amendments to Law No. 11 of 2020 After the Constitutional Court Decision Number 91/PUU-XVIII/2022
As stated in the previous discussion, normatively, the decision of the Constitutional Court aquo is a legal decision that must be obeyed and implemented by all parties without exception, including the Petitioner and the Respondent (DPR and Government). In the sense that the decision of the Constitutional Court aquo is a legal decision that must be obeyed and carried out by all parties without exception because the Constitutional Court decides on an application for judicial review based on the authority based on 1945 Constitution and the implementing regulations. The provisions as stipulated in the 1945 Constitution became the basis for the Constitutional Court in carrying out its duties and authorities to conduct formal and material reviews of laws in the Constitutional Court. Therefore, compliance with the implementation of the Constitutional Court's decision aquo is also an integral part of complying with and implementing the rule of law principles as referred of the 1945 Constitution. Based on this, the DPR and the Government, in their petitum, have stated that "the issuance of Law Number 11 of 2020 concerning Job Creation is not contrary to the 1945 Constitution of the Republic of Indonesia." 35 However, in its ruling, the Constitutional Court stated, among other things, that "the legislators are given 2 (two) years to 35  the government's efforts in carrying out what is stated in the Constitutional Court's decision aquo. All mentioned in the Constitutional Court ruling aquo must be obeyed and carried out by the DPR and the government in making improvements to Law no. 11 of 2020. Because if the decision is not complied with and implemented by the DPR and the government, then as later stated in the ruling which states emphatically, "within 2 (two) years the legislators are unable to make improvements to Law No. 11 of 2020, the law is not permanently valid.
It is true if you look at the 2 (two) year grace period given by the Constitutional Court to the DPR and the government to amend Law No. 11 in the Year 2020 is too short. However, as a legal decision, whether we like it or not, the DPR and the government, as the legislators according to the 1945 Constitution, are obliged to comply with and implement the aquo Constitutional Court decisions carefully. Apart from complying with the Constitutional Court's decision, the DPR and the government are also required to socialize the aquo Constitutional Court's decision in educating the public so that the public understands the existence of Law no. 11 of 2020 after the MK decision aquo.
Along with implementing the aquo MK decision, it turns out that the DPR and the government did not immediately change Law no. 11 of 2020, but first amending Law no. 12 of 2011 in conjunction with Law no. 15 of 2019, as the basis for forming laws in Indonesia. It is said so because the provisions referred to in Article (3), are regulated by Presidential Regulation. 41 If the DPR and the government approve the Bill on Amendments to Law N0. 12 of 2011 to become a law, the omnibus law method can be used to improve Law no. 11 of 2020 as stated in the MK decision aquo.
The DPR and the government's efforts to make changes to Law no. 12 of 2011 are also within the framework of affirming the use of the omnibus law method to change and shape future laws. This opinion is to answer one of the reasons for filing a formal review of Law no. 11 of 2020, namely: that in Law no. 12 of 2011, there are no rules regar- people in the changes to the two Laws aquo really must be considered, even though determining the representation of the people in the formulation of the law is very difficult, and there is no measure. However, substantially the representation of the community needs special attention so that it will not be questioned in the future. On this basis, the parties genuinely affected by the issuance of a law need to be asked for their opinion so that in the future, they will not be harmed by the issuance of a law. Likewise, with the time the law was formed, in the law, there is also no benchmark for how long it takes for a law to be made and discussed until it is passed into law. However, even though there are no benchmarks, the DPR and the government need to do some testing on several things for the issuance of a law. For example, it is necessary to measure the losses caused to the surrounding community from development for the public interest so that the parties involved in providing compensation in the development of the public interest are not harmed.
In addition, it is also necessary to state clearly the use of the omnibus law method to form which type of legislation, as referred to in Article 7, paragraph (1) of Law no. 12 of 2012. In this case, it is necessary to confirm whether the omnibus law method can be applied to change and form all types of laws and regulations as referred to in Article 7 paragraph (1) of Law no. 12 of 2011. For this reason, the authors propose that the omnibus law method is only used to amend and form the law as referred to in Article 7, paragraph (1) of Law No.12 of 2011. This is because the law was issued jointly between the DPR and the government to carry out the core contents contained in Pancasila and the 1945 Constitution at an implementation level which is used as a guiding principle (foundation) for the government in administering government. The law embodies people's sovereignty in implementing Pancasila and the 1945 Constitution in administering government. When the government implements the law, it must issue several regulations, starting with government regulations down.  Following the order, regulations starting from PP downwards are the law's implementation. So, the substance of the regulation is the implementation of the law. Thus, changes and formation may not use the omnibus law method as forming laws. That is where the need for confirmation in the amendment to Law no. 12 of 2011 concerning the use of the omnibus law method, which is only used to amend and form laws while amending and forming Government Regulations, Presidential Regulations, Provincial Regional Regulations, and Regency/City Regional Regulations the omnibus law method cannot be used. Likewise, in amending and forming the Constitution and MPR Decrees, you cannot use the omnibus law method because the changes are not made by law but are strictly regulated in the 1945 Constitution. These matters must be considered by the DPR and the government in making changes to the law. No. 12 of 2011, so that in the future, it will not cause any more legal problems.

D. Conclusion
Based on the Constitutional Court Decision Number 91/PUU-XVII/2020, that Law No. 11 of 2020 is still valid. However, the House of Representative/DPR and the Government are given time to fix it within a period of two years. If corrections are not made within this time period, the law will become permanently invalid. In fulfilling this, first amendments were made to Law Number 12 of 2011, so that it became Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning Formation of Legislation. The amendment has included the omnibus method as the basis for forming laws and regulations. Based on Law Number 13 of 2022, the DPR and the Government made improvements to Law Number 11 of 2020.