Constitutional Court acts to protect workers' rights

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

Employers can no longer dismiss striking workers or those implicated in crimes without due process of law, the Constitutional Court ruled on Thursday.

But the court rejected the motion filed by nine representatives of various labor unions who demanded that Law No. 13/2003 on manpower be revoked.

Only two of nine judges conducting a judicial review of the law, Abdul Mukthie Fadjar and Laica Marzuki, voted in favor of the plaintiffs, saying the law was against the Constitution.

The court annulled Article 158 of the law, which allows employers to fire workers for allegedly being involved in crimes or serious mistakes, such as stealing company property or provoking colleagues to commit unlawful acts.

Dismissal is possible if the workers are caught red-handed or if they admit their wrongdoings or are reported by their supervisors.

"The Constitution guarantees that every citizen is equal before the law. Article 158 of the law, which allows employers to dismiss their workers for alleged crimes without due process of law, is against the Constitution, therefore, it must be declared non binding," Constitutional Court president Jimly Asshidiqie told a hearing on Thursday.

The Constitutional Court's verdict is final and legally binding.

As a consequence of the ruling, employers can only dismiss workers who are fond guilty by the Supreme Court.

The Constitutional Court also scrapped Article 186 of the Manpower Law that criminalizes participation in a strike or asking other workers to join a strike. Violation of the article under the Manpower Law carries a minimum sentence of one month in prison and a maximum of four years or a fine between Rp 10 million (US$1,098) and Rp 400 million.

"The Court considers the sanctions are not proportional as they reduce the right to strike and infringe on workers' freedom of expression, which is a basic right guaranteed by the Constitution," Jimly said.

The panel of judges also criticized the authorities for failing to protect the rights of workers.

"It is apparent that the authorities failed to monitor and enforce the law to protect the rights of workers," the verdict says.

Abdul Mukthie and Laica presented their dissenting opinions, saying the Court was supposed to annul more articles in the law.

Both justices highlighted the issue of outsourcing, which is acknowledged by the law, which they said was against the "Constitution's paradigm of protecting citizens" as it reduced workers to a mere commodity.

"The Constitution is based on human rights. It is regretful therefore, that the Manpower Law is inhumane," the justices said in their opinion read out by Jimly.

Syaiful Tavip, one of the plaintiffs, expressed regret that the court failed to revoke articles that recognize outsourcing, the establishment of working contracts between employers and worker unions and administrative procedures required to stage a strike.