CONSTITUTIONALITY OF THE OMNIBUS LAW NUMBER 11 OF 2020 ON JOB CREATION

The concept of “Omnibus Law” has been a topic of controversy in Indonesia from the moment it was proposed by President Joko Widodo to date. Throughout 2020, out of the 50 draft laws to be prioritized in the National Legislation Program, the Job Creation Draft was undeniably the most discussed and disputed. Debates revolved around not only the material content of the draft law (among others, the potential yet dilemmatic revocations or amendments of other laws and legislations resulting from the enactment of such cross-sectoral law), but also the procedural soundness of its legislative process (among others, the issues of transparency and representation in the legislative drafting process). These debates point towards not only the constitutionality of “Omnibus Law”, but also the political will of the law itself – aspects that were all the more pressing to be scrutinized as the Government moved on crystalize the Job Creation Draft Omnibus Law into a positive law, namely Law Number 11 of 2020 on Job Creation. This research will investigate three indispensable aspects. First, investigate into the

The Government realizes that "desired investment does not come from only domestic, but also foreign investors in the form of foreign investment" and that "Indonesia as a country in need of investment to finance its development and must improve the time, procedure, and cost spent for establishing business, primarily through policy and regulatory reforms". 3 Excessive and overlapping regulations, coupled with institutional inefficiency, have become major impediments to investment in Indonesia. To eliminate these 169 problems, President Jokowi proposed the enactment of an Undang-undang Omnibus or Omnibus Law, which is commonly understood as a piece of major legislation that covers more than one substantive area of law (i.e., is cross-sectoral), aimed at streamlining Indonesia's currently 'obese' and rather cumbersome legal system into a more compact, harmonious, and comprehensive one. One of the most comprehensive Draft Omnibus Law was disseminated in 2020, namely the Job Creation Draft Omnibus Law, which comprised 15 Chapters and 174 Articles, aimed at streamlining (i.e., amending or revoking) 79 relevant laws. Such proposal has been met with various responses from relevant stakeholders across the nation. On the one hand, many commentators see the Omnibus Law as a practical solution to the alleged over-regulated society that hinders investment, but on the other hand, critics are concerned with the efficacy, political intention, and constitutional soundness of the approach.

Despite remaining concerns and debates surrounding Job Creation Draft
Omnibus Law, the Government proceeded to enact Law Number 11 of 2020 on Job Creation (Job Creation Omnibus Law) as positive law. This calls for further analysis on whether such Omnibus Law could effectively be implemented in Indonesia to attain the purposes of legal certainty, utility, and justice by, among all others, looking at issues of constitutionality, functionality, and political will of law underlying the enactment of Job Creation Omnibus Law.
In order to make thorough legal assessments on the implementation of Job Creation Omnibus Law, the following questions have to be fully considered: In consideration of constitutionality issues, how does Omnibus Law function within the hierarchy of Indonesian Legal System and how is Job Creation Law enforced to ensure the fulfillment of purposes of law? The main purpose of this Research is to clarify both the implementation and enforceability of Job Creation Omnibus Law, in consideration of the constitutionality of Job Creation Omnibus Law.

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The idea of an Omnibus Law as a feasible solution to organise and address the legislative and regulatory challenges of the country was mentioned prior to President Jokowi's initiative, specifically by Indonesia's Coordinating Minister of Economic Affairs Sofyan Djalil in 2017. However, until recently, the idea had never been fully realised into actionable policy. 4 Omnibus Law was created by the Jokowi administration to push ahead with infrastructure and economic development through investment. 5 Representing the culmination of a signature policy of the President, this Law was aimed at simplifying overlapping regulations and boosting foreign direct investment by improving the ease of doing business. 6 Omnibus is a method of forming laws and regulations that is commonly used universally. However, the substance of a draft law prepared using the omnibus method must not conflict with the 1945 Constitution. Therefore, the Government and the legislatives need to withdraw the Job Creation Bill from the discussion process, However, it is to be noted that a true Omnibus Law, which concerns various sectors and ultimately makes a major effort at legislative and regulatory streamlining, has never been explicitly recognized under the Indonesian legal system as a concept that is commonly understood and practiced previously.

Omnibus Law Within the Indonesian Legal System
Omnibus Law was mentioned for the first time as an initiative of Jokowi in his

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To illustrate the impediments faced by the economy, the Government uses the 'Bucket Illustration' as follows: As the Bucket Illustration indicates, the Government acknowledges that regulation and institution is the most significant impediment to Indonesia's economic growth. In addition to the abovementioned problem of disharmony between regulatory and administrative tools, the legal system is so overwhelmed with an abundance of laws and  Indonesia. It has been reported that more than USD 120 billion worth of capital accumulated in the investment pipeline in Indonesia the past three years failed to materialize due to excessive regulations. 18 Omnibus Law thus becomes a potential alternative to solve the abovementioned problems. As a follow-up to Jokowi's proposal, the Government of Indonesia is proposing four Omnibus Bill out of the 50 bills to be prioritized in the 2020 National

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The analogy of a bus seems to fit perfectly with the concept of Omnibus as a legal term, as an Omnibus Law is "designed to cover many different cases, embracing numerous distinct object", according to the Compromise of 1850, a package of disparate draft bills approved by the United States' Congress to put an end to slavery in the new states post Mexican-American War. 23 Despite being prominent in the Common Law legal tradition such as the United States and Canada, the concept of Omnibus Law also appears in Civil Law countries, as can be seen from the following  (1994). 28 However, the threshold that recurs throughout discussions on Omnibus Bill relates to 'unifying principle', 'single purpose ', 'unifying thread', and 'unitary purpose'. 29 There are two main purposes of Omnibus Law: (a) to correct anomalies, Draft-Bills-to-be-submitted-to-the-House-of-Representatives.pdf, accessed on December 29, 2019. Note: The use of the term 'umbrella act' is still debateable in Indonesia. A growing concern relates to the possibility of Omnibus Law, if treated as an 'umbrella law', to eliminate other instrumental regulatory substance from relevant laws that it does not cover. 25  179 errors, inconsistencies, or overlapping of laws and legislations, (b) to have farreaching impact (practical impact) due to its cohesive and integrated nature.
In 1888, the practice of Omnibus Law existed when a private bill was introduced with the aim of confirming two separate railway agreements in the United States. To date, Omnibus Bill is also consistently used within the United States' legal system with the purpose of creating a comprehensive and far-reaching regulation, for example the Transportation Equity Act for the 21 st Century which becomes the most extensive regulation in the country. It is worth noting that the Philippines has also implemented Omnibus Law to regulate the investment sector, by enacting the Omnibus Investment Code of 1987. 30 As can be seen from the Code, the Philippines' Government aims to integrate basic laws on investment, clarify and harmonize their provisions, ensuring a cohesive and consolidated investments incentives law to encourage investments.
In Indonesia, there are two implications of Omnibus Law enactment that can be observed, which are (1) Existing Law is still enforceable, except if certain articles (regulatory substance) have been amended or revoked, (2) Existing Law is not enforceable anymore, if the articles (regulatory substance) that has been amended or revoked is the crux of such law.
(c) Complexity: Omnibus Law formation varies according to the political will of law In Indonesia, a 'political will of law' is understood to determine which reform that needs to take place in order to meet the emerging needs within the society. 31 Corresponding to Black's Law Dictionary's definition of Omnibus Law as being "drafted in this way to force the executive either to accept all the unrelated minor provisions or to veto the major provisions" 32 , it can be understood why the complexity of Omnibus Law varies across jurisdictions based on the underlying political will of law.

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In Turkey, for example, the implementation of Omnibus Law through an instrument called torba kanun significantly reflects the will of the political party that has the majority in the parliament and causes the exclusion of the others from the law-making process. 33

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It is to be noted that Omnibus Law has never been explicitly recognized under the Indonesian legal system. However, Indonesia has been constantly challenged by major impediments to establishing conducive investment ecosystem supported by a

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The hierarchy of law in Indonesia is enshrined under Article 7 of Legislative Drafting Law as follows: In the implementation of laws and legislation, Hans Kelsen's postulated the Theory on Hierarchy of Legal Order ('Stufenbau Theory'), which is highly applicable in Indonesia: "The legal order […] is therefore not a system of norms coordinated to each other, standing, so to speak, side by side on the same level, but a hierarchy of different level of norms. The unity of these norms is constituted by the fact that the creation of the normthe lower oneis determined by anotherthe higherthe creation of which is determined by a still higher norm, and that this regressus is terminated by a highest, the basic norm which, being the supreme reason of validity of the whole legal order, constitutes its unity". After establishing that Omnibus Law shall be treated as a Law (undang-undang), it is pertinent to look into the legislative process required to come up with such law.
Article 20 (1) of the 1945 Constitution grants the law-making authority (legislative function) to the legislative branch of government, namely DPR. In drafting legislations, DPR shall discuss law at hand with the President, in consideration of the wording of the law and accompanying academic texts, to eventually reach a consensus.
As explained previously, to date, the only Omnibus Bill that has undergone thorough discussion in DPR is Job Creation Bill according to the following timeline: Article 4 of the said decision, in carrying out its duty, the Task Force may involve ministries/non-ministerial government institutions, regional government, stakeholders, academics and other relevant parties. However, in reality there were many stakeholders left out from the public consultation of Omnibus Law. This sparked many protests throughout the country, including from labourers as their aspirations is not accommodated in the formulation and enactment of Job Creation Bill, as will be further elaborated in the next section.

(d) Constitutionality of Omnibus Law
In discussing the problems and controversies surrounding Omnibus Law in Indonesia, the discussion of Job Creation Bill as the only major bill under review and public scrutiny during its formulation, is indeed inevitable. In a nutshell, the  186 5) confirm that all licensing processes will be undertaken by the central government, rather than being allocated between the central government and local governments. 42 The Government claims that these revisions are necessary to change the investment climate in order to benefit Indonesian economy. However, it is believed that in a democratic state of law such as Indonesia, a law or legislation shall not contain any errors both in substantive aspect and procedural aspect (substantive due process of law and procedural due process of law).
As can be seen from the timeline of Job Creation Bill drafting, the finalizations of draft bill and academic text were carried out within less than a month. In fact, Jokowi has targeted that Job Creation Bill shall be finalized within 100 days. 43 Taking into account that Indonesia has never come up with such a comprehensive Omnibus Law, coupled with the short deadline of legislative drafting, several procedural and substantive problems have been highlighted constantly by various legal experts and stakeholders.
There are two major procedural problems that are observable from the legislative drafting of Job Creation Bill. Constitution is an underlying spirit commonly found in various laws and legislations 46 CNN Indonesia, "Akademisi Nilai RUU Ciptaker Langgar Asas Keterbukaan", https: //www.cnnindonesia.com/nasional/20200422202527-32-496299/akademisi-nilai-ruu-ciptakerlanggar-asas-keterbukaan, accessed on 23 April 2020. 47 Tsarina Maharani, "92 Akademisi Teken Petisi Tolak Omnibus Law RUU Cipta Kerja", https://nasional.kompas.com/read/2020/04/22/17222001/92-akademisi-teken-petisi-tolak-omnibus-lawruu-cipta-kerja, accessed on 22 April 2020 in Indonesia, such as the Agrarian Law, which is based on customary law that sides with indigenous population; 48 Labour Law, which serves to revolutionize legal protection for workers; 49  This Decision essentially points out that the Job Creation Law is against the 1945 Constitution that the Law is rendered unconstitutional and to be revised in a period of 2 years. Should no revision be made to the Law, it will be rendered permanently unconstitutional. Indeed, this Decision came after thorough consideration of the Constitutional Court that the formulation of the Law has been tainted with both procedural and substantive flaws as explained in this Research.
In essence, the lack of stakeholders participation becomes the determining flaws of the Law, which is against the principle of openness or transparency, essential to the formulation of laws and legislations.
Law development in which the preparation of a legal system is carried out in accordance with changes in society which do not only question the legal structure but also the legal culture of the community itself, 51 and legal politics. Legal politics of omnibus law stems from the political will with the legal method for all. This is intended to simplify regulations and deregulate regulations that hinder job creation and empower micro, small and medium enterprises (hereinafter UMKM) through an omnibus law in the form of the Job Creation Law. The existence of political will from President Jokowi to make the Job Creation Law as an omnibus law is the beginning of the planning stage. This is a form of omnibus law transplantation in the formation of legislation in Indonesia. 52 The legal politics of the formal and material of the job creation law is still dynamic since the political will to form a job creation law and empower UMKM by implementing the omnibus law. The direction of legal politics is the creation of a 190 new law in omnibus law form in the context of creating job opportunities. 53 Legal politics (legal policy) will be a bridge to form operational regulations (law in the broadest sense) in accordance with the spirit of Indonesian legal ideals. Legal politics also helps investigate changes so that the law is in accordance with werkelijjkheid (social reality), which is the ius constituendum that determines the new ius constitutum. 54 Job Creation was agreed to be one of the bills in the 2020-2024 National Legislation Program (Prolegnas) and the 2020 Priority Bill. This means that there has been an agreement between the DPR RI, DPD RI, and the President to make the bill a national legal development agenda, to overcome problems regulations, creating jobs, and empowering UMKM. This is a concrete manifestation of the implementation of national legal politics, although the government is not ready with Constitution of the Republic of Indonesia, relating to human rights to work and a decent living for humanity. For this reason, the government is obliged to fulfill the rights to work of its citizens.
The Indonesian Parliament passed a massive bill titled Job Creation on October 6, 2020. As part of the Job Creation Bill, two laws were repealed and 82 others were amended. As a result, at 1187 pages, this is the longest piece of legislation that the Indonesian Parliament has ever passed. The act's spirit, which centres job creation, guarantees the nation's stability and economic justice. 56 Despite still being under discussion, the Job Creation Draft Omnibus Law provides an idea of how the Government of Indonesia intends to implement the concept of an Omnibus Law in Indonesia. The draft law has sparked a debate across the country in regard to various issues, including, but not limited to, the topic of interest of this Paper, namely the constitutionality of such law. It is also essential to assess how Indonesia's legal system understands the Omnibus Law as a concept.
Despite not being a novel concept, the Omnibus Law has scarcely been implemented globally and is commonly perceived as a Common Law (Anglo 56 Saru Arifin, "Illiberal Tendencies in Indonesian Legislation: The Case of The Omnibus Law on Job Creation", The Theory and Practice of Legislation (2021), DOI: 10.1080DOI: 10. /20508840.2021 Saxon) legal concept requiring careful and thorough consideration for it to be transplanted into the Civil Law (Continental European) legal tradition of Indonesia.

III. CLOSING
As has been discussed above, taken as a whole, Omnibus Law is primarily aimed to increase investment in Indonesia, providing various improvements in ease of establishing businesses and economic cooperation, but especially still guaranteeing the welfare of all citizens in practice. However, there are various procedural and substantive problems that need to be tackled by the Government before full implementation of the law.
It is yet to be clear how the Government will respond to the wave of rejections towards the Omnibus Law initiative and eventually come up with a balanced set of laws and legislation that will guarantee both national interest and protection for investors, especially within the two years given to revise the Law. Reservations shall be made to this Research impending the upcoming revision of the Job Creation Law by the Government. Should the Law be eventually amended, further research and findings could be reported as an alteration to the current Research.