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The Indonesian Constitutional Court Ruling on the Omnibus Law: Unconstitutional with Conditions?
In the Ruling, the Court concluded that the formation of the Omnibus Law is procedurally flawed (cacat formil) and ruled, among other things:
- To declare the formation of Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573) to be in conflict with the Constitution of the Republic of Indonesia of 1945 and conditionally will have no legally binding force as long as it is not interpreted as “not revised within two (2) years of this ruling being pronounced”;
- To declare Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573) still in effect until the revision of its formation within the grace period provided in this ruling;
- To order the legislators to make revisions within two (2) years of this ruling being pronounced and if within the grace period no revisions are made, Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573) will become permanently unconstitutional;
- To declare that if within the two (2) year grace period the legislators cannot complete the revision of Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573), the laws or articles or content of laws that have been revoked or amended by Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573) will be declared to be re-enacted;
- To declare the suspension of all actions/policies that are strategic in nature and have a far-reaching impact, including a prohibition against issuing new implementing regulations<?u> related to Law No. 11 of 2020 on Job Creation (State Gazette of the Republic of Indonesia of 2020 No. 245, Supplement to the State Gazette of the Republic of Indonesia No. 6573).
- the uncertainty of whether the Omnibus Law is new, amending or revoking legislation under Law No. 12/2011;
- the significant changes to the substance of the Omnibus Law after the joint approval of the House of Representatives (Dewan Perwakilan Rakyat) and the President; and
- the lack of the maximum possible and meaningful public participation in the formation of the Omnibus Law.