Harmonization of the Minister of Law and Human Rights Regulation of the Republic of Indonesia Number

oleh: Maria Deriana Rosari Putrina Naha

A. INTRODUCTION

1. Background The corona virus pandemic COVID-19 has a big impact on the social life and the wheel of the Indonesian economy. Until Wednesday, April 22, 2020, the government has established a policy of implementing Large Scale Social Restrictions (PSBB) in 2 provinces and 21 districts or cities in Indonesia.1 During the outbreak of COVID-19, most companies and government agencies also implemented the Work From Home (WFH) system. In addition, physical distancing policies and declining economic activity in Indonesia also have an impact on the number of companies laying off workers and employment, for example, as happened in Special Capital Region of Jakarta, based on data from Jakarta Manpower, Transmigration and Energy, 30,137 workers from 3,348 companies were laid off, and 132,279 workers from 14,697 companies had to be laid off temporarily.2That is now a reality in society as a result of a number of policies established by the government during the spread of COVID-19. A number of new regulations have been issued by the government as a means to increase COVID-19 prevention efforts in the territory of Indonesia with national and international coverage that are considered to be optimal in breaking the chain of COVID-19 distribution. Based on National Geographic Indonesia’s data (Thursday, March 12, 2020), it was mentioned that the corona virus outbreak has been designated as a pandemic by the World Health Organization (WHO).3 Determination of the status of COVID-19 as a pandemic is behind the Indonesian government issued a temporary ban for foreign citizens (foreigners) to enter or transit to Indonesia.

This was later contained in the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner. Looking at the regulation, we will find several exceptions to the enactment of regulations provided by the government, as contained in Article 3 paragraph (1) letter a-f. Particularly, in Article 3 paragraph (1) letter f, which explains that the exemption is given to foreigners who will work on the National Strategic Project. Even though in this condition, where the corona becomes a pandemic that spreads all over the world, access to and from foreign citizens should be limited as a form of protection against the condition of society so that the chain of COVID-19 distribution can be broken. Article 3 paragraph (1) letter f then creates problems related to licensing and protection given by the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020, in the case of the entry of foreigners who are members of a national strategic project in the territory of Indonesia. Such a situation certainly affects the social conditions of people in the middle to lower economic level, which in general must be laid off or laid off temporarily by the company where they work. Because during the COVID-19 deployment, the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 that was ratified actually protected the use of foreigners in working on national strategic projects, while as mentioned in Presidential Regulation of the Republic of Indonesia Number 58 of 2017 on Amendments to Presidential Regulation Number 3 of 2016 concerning the Acceleration of National Strategic Project Implementation on Article 24 paragraph (1) explains that “The National Strategic Project Implementation prioritizes the use of domestic goods and/or services.”Thus, this paper aims to review the impact of Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner. Thus, it can be explored further about its relation to the impact of layoffs in Indonesia during the spread of COVID-19. Furthermore, with this analysis, the government is expected to be able to provide solutions and instruments as a means of prioritizing the domestic society in working on national strategic projects during the COVID-19 pandemic.

2. Problem Formulation

1. What is the impact of the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner during the spread of the COVID-19? 2. How is the implementation of the Minister of Law and Human Rights Regulation of the Republic of Indonesia Number 11 of 2020, if it is related to the impact of layoffs in Indonesia as a result of COVID-19?

B. DISCUSSION 1. The Impact of the Regulation Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner during the spread of COVID-19? WHO has set COVID-19 as a pandemic, and as reported by Worldmeters Info, the virus has infected 212 countries and territories worldwide.4 As a form of prevention to the continued development of the COVID-19 pandemic, the Indonesian government through the Ministry of Law and Human Rights issued the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner. Based on this Regulation of the Minister of Law and Human Rights of the Republic of Indonesia, the Indonesian government has chosen the right step by rejecting 242 foreigners who will enter Indonesian territory during the COVID-19 pandemic, the number was obtained with a time span from February 6 to April 19, 2020.5 If judging further in the formulation of Article 3 paragraph (1) letter f related to licensing for Foreigners who will work on national strategic projects to enter or transit in the territory of Indonesia, then the interpretation of national strategic projects in the formulation of this article is a project that is in accordance with those already established by The Committee for Accelaration of Priority Infrastructure Delivery (KPPIP). A concrete example that has become a polemic in the community today is the approval of the Ministry of Manpower of the Foreign Worker Employment Plan (RPTKA) at PT Virtue Dragon Nickel Industry and PT Obsidian Stainless Steel to carry out the Smelter Factory construction project in Konawe, Southeast Sulawesi.6 This should be the right legal protection if it is implemented in Indonesia, as an effort to protect the society against the continued spread of the COVID-19 pandemic. But the government seems to forget, that if Article 3 paragraph (1) letter f is carried out in accordance with the phrase written in the Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020, it will certainly give rise to new complexity in its application in society, because it can have the effect of developing a gap in the spread of COVID-19 for second wave. As well as predicted by Epidemiologist Dicky Budiman from an interview with the Indonesian CCN team, the transmission of COVID-19 in Indonesia has not yet reached its peak and is still in the upward curve phase. Meanwhile, history says the second wave of the epidemic will be worse than the first wave. Because, waves occur due to negligence.7 “Consistency and Precision are Needed in The Formation of Lagislation, so that there will be no overlapping.” Because on the one hand, the government is faced with protection efforts that should have been carried out massively in order to avoid the continuation of the COVID-19 pandemic chain. A special solution is still needed to reduce the spread of COVID-19 in Indonesia. While on the other hand, the government actually dared to take risks by giving access permits for foreigners who will work on national strategic projects to enter and transfer in Indonesia during the COVID-19 pandemic. In fact, the use of foreigners in the execution of national strategic projects is something that should be avoided by the government as much as possible, because this will add to the government’s responsibility in ensuring the safety of foreigners, while currently, Indonesia is not in a safe phase that shows a rapid recovery rate for everyone which was recorded as being infected with COVID-19. So that during the COVID-19 pandemic, more government main concerns were needed to accelerate the handling of the spread of COVID-19 and to recover the conditions of the people affected by COVID-19 immediately. 2. Implementation of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020, if it is related to the impact of layoffs in Indonesia as a result of COVID-19 At present, repressive measures as a response to prevent the spread of COVID-19 with the number of cases and / or the number of deaths have increased and expanded across regions and across countries and have an impact on political, economic, social, cultural, defense and security aspects, and welfare the people in Indonesia, the government established the Republic of Indonesia Government Regulation Number 21 of 2020 on Large-Scale Social Restrictions in the Context of Handling Corona Virus Disease 2019 (COVID-19).8 It shall be acknowledged that at this time, Indonesia’s capacity has not been able to reduce the number of layoffs by providing solutions to reduce work time and provide compensation to workers as has been done by France, Germany (Kurzarbeit), Italy and the Netherlands related to the regulation of reducing work time and compensation to workers. Instead of applying WFH, the condition of the majority of middle-to-lower economic groups has actually worsened, due to layoffs, which then result in a decrease in purchasing power and a decline in the people’s economy. This is proven based on data from the Ministry of Manpower as of April 20, 2020, there were 2,084,593 workers from 116,370 companies laid off and laid off due to the corona pandemic. The use of foreigners in the execution of national strategic projects in Indonesia, certainly has a close continuity with the issuance of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020. This specifically refers to the exclusion of temporary bans of Foreigners for entering or transiting in the Territory of Indonesia against Foreigners who will work on national strategic projects, as stated in the formulation of Article 3 paragraph (1) letter f the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020. In the execution of national strategic projects, the government should prioritize the work on national strategic projects to the domestic community, as already mentioned in Presidential Regulation of the Republic of Indonesia Number 58 of 2017 on Amendments to Presidential Regulation Number 3 of 2016 on the Acceleration of National Strategic Project Implementation in Article 24 paragraph (1) that “The National Strategic Project Implementation prioritizes the use of domestic goods and / or services.” Especially during this pandemic, Indonesian people also need jobs to be able to continue their lives. Especially for people who have good qualifications and in accordance with the required field of project work. Although on the grounds, there are no domestic workers who have the qualifications that are in accordance with what is needed, the use of foreigners as workers in national strategic projects should not escape the regulations set by the previous government, through Presidential Regulation Number 20 of 2018 on Foreign Workers Utilization, where Article 26 paragraph (1) letter a states that “Every Foreign Workers (TKA) Employer must appoint Indonesian workers as Companion Workers” and Article 26 paragraph (1) letter b which states that “Every TKA Employer must carry out education and training for Indonesian workers in accordance with the qualifications of positions occupied by TKA” Article 3 paragraph (1) letter f of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 give losses to the people of Indonesia during the COVID-19 pandemic, because they are automatically required to compete with qualifications held by foreigners, and of course their position can be replaced and will be displaced from foreigners who have been legally protected in Indonesia by virtue of Article 3 paragraph (1) letter f of the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020. On this basis, the nomenclature of Article 3 paragraph (1) letter f should be added with the phrase “….. in the absence of the project causing the project not to run”. The addition of the article nomenclature can be a legal certainty that the use of foreigners in the work of national strategy projects, can only be used as the last option of the government, with a note that in every decision to use foreign citizens, valid data evidence is needed stating the condition of the domestic community does not have the qualifications required in the implementation project. During this pandemic, many employee layoffs and government approval of the RPTKA for reasons of lack of manpower with qualifications as needed in the work on national strategy projects, then this should be the right momentum for the government to use pre-employment cards as a solution to this problem. As it was also stated by the Minister of Manpower, Ida Fauziah in his interview with the Kompas team, on April 19, 2020. Overcoming the ongoing impact of layoffs during the COVID-19 pandemic the government must realize soft skills training for the community through the pre-employment card program by providing opportunities for the community to participate in courses at official partners, such as at Skill Academy by Ruangguru, which are currently accessible online by the public. So that during the COVID-19 pandemic this soft skill optimization will be achieved in the midst of people affected by layoffs, and in the future, the Indonesian people can become the main pioneers in working on national strategic projects. C. CONCLUSION AND SUGGESTION 1. Conclusion In facing COVID-19 pandemic the participation of all stakeholders in the community is needed to work together in overcoming COVID-19. In addition, the government must ensure that each regulation made has consistency, precision and clear analysis, so there is no overlap in the legislation. Because every regulation issued by the government becomes a source of legal certainty from the relevant legal subjects regulated in it, so the phrase formulation of articles in legislation must be avoided that can be detrimental to the party concerned. The Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020 on Temporary Prohibition of Entry to the Territory of the Republic of Indonesia For Foreigner is still considered ineffective as an effort to prevent the spread of COVID-19 in Indonesian territory, because in this Ministerial Regulation there are many exceptions to the conditions of Foreigners which can actually become a gap to spread COVID-19 in Indonesia. Especially in Article 3 paragraph (1) letter f which actually provides protection for foreigners to enter Indonesia during the COVID-19 pandemic provided that the foreigners will work on national strategic projects. Even though in this condition, where corona becomes a pandemic that spreads all over the world, access to and from foreign citizens should be limited as a form of protection against the condition of society so that the chain of COVID-19 distribution can be broken.

2. Suggestion There needs to be an addition in nomenclature to the phrase Article 3 paragraph (1) letter f by adding the word “……… in the absence of the project causing the project not to run” it is to avoid the emergence of social dysfunction as a result of the social jealousy of the middle class downward people who mostly experience layoffs. In addition, this also serves as a form of legal certainty that gives priority to the people of Indonesia to be able to work on national strategic projects during the COVID-19 pandemic, as also formulated in Presidential Regulation of the Republic of Indonesia Number 58 of 2017 on Amendments to Presidential Regulation Number 3 of 2016 on the Acceleration of National Strategic Project Implementation in Article 24 paragraph (1) that “The Implementation of the National Strategic Project prioritizes the use of domestic goods and / or services.” Therefore, with the addition of the nomenclature of Article 3 paragraph (1) letter f Regulation of Minister of Law and Human Rights of the Republic of Indonesia Number 11 of 2020, it is hoped that people affected by layoffs during the COVID-19 pandemic can also improve soft skills by following training programs provided by the government through pre-employment cards, so that the Indonesian people can fulfill every qualification of workers in national strategic projects. Because in principle in working on national strategic projects, the Indonesian people are the first option that must be prioritized.

REFERENCES

Dani Prabowo, 2020, BNPB: Sudah 2 Provinsi dan 21 Kabupaten/ Kota yang Terapkan PSBB, https://nasional.kompas.com/read/2020/04/22/19520061/bnpb-sudah-2-provinsi-dan-21-kabupaten-kota-yang-terapkan-psbb, accessed on May 8, 2020 Liputan 6, 2020, 30.137 Pekerja di Jakarta Kena PHK Akibat Wabah Corona, https://www.liputan6.com/bisnis/read/4220444/30137-pekerja-di-jakarta-kena-phk-akibat-wabah-corona#, accessed on May 6, 2020 Gita Laras, 2020, WHO Tetapkan COVID-19 Sebagai Pandemi Global, Apa Maksudnya?, https://nationalgeographic.grid.id/read/132059249/who-tetapkan-covid-19-sebagai-pandemi-global-apa-maksudnya, accessed on May 6, 2020 Worldometers, 2020, Covid-19 Coronavirus Pandemic, https://www.worldometers.info/coronavirus/, accessed on May 8, 2020 Liputan 6, 2020, Imigrasi Tolak 242 Orang Asing ke Indonesia Selama Pandemi Corona, https://www.liputan6.com/news/read/4233592/imigrasi-tolak-242-orang-asing-ke-indonesia-selama-pandemi-corona#, diakses pada 8 Mei 2020 Tribun Kaltim, 2020, Alasan Baru Pemerintah Jokowi Terima 500 TKA China, Bisa Selamatkan 15 Ribu Karyawan Lokal dari PHK, https://kaltim.tribunnews.com/2020/05/02/alasan-baru-pemerintah-jokowi-terima-500-tka-china-bisa-selamatkan-15-ribu-karyawan-lokal-dari-phk, accessed on May 8, 2020 CNN Indonesia, 2020, Ahli RI Ingatkan Gelombang Dua Corona Bisa Lebih Buruk, https://www.cnnindonesia.com/teknologi/20200423123655-199-496508/ahli-ri-ingatkan-gelombang-dua-corona-bisa-lebih-buruk, accessed on May 8, 2020 Government Regulation Number 21 of 2020 on Large-Scale Social Restrictions in the Context of Handling Corona Virus Disease 2019 ( (COVID-19), May 31, 2020, Jakarta

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