jarle volume xi issue 1(47) spring 2020

Volume XI, Issue 1(47), Spring 2020

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Quarterly Volume XI Issue 1(47) Spring 2020 ISSN: 2068-696X Journal' DOI: https://doi.org/10.14505/jarle

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Journal of Advanced Research in Law and Economics

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Contents:

1

Criminal Protection of the Environment in Jordanian Legislation by Abdullah Alkseilat, Hamzeh Abu Issa, and Ayman Al-refou … 6

2 Mechanism of International Legal Implementation for Human Security at the National Level by Vadim Avdeevich Avdeev, Olga Anatolievna Avdeeva, Anton Vitalyevich Bykov, Evgeny Vasilyevich Znamerovskiy, Alexey Nikolaevich Aksenov, and Stanislav Valerievich Zhigalov … 13

3 Conciliatory Justice in Modern Russia by Katerina Dremova … 19

4 A Concise History of United States Resale Price Maintenance Arrangements and its Current Status under State and Federal Laws

by Anthony J. Greco … 26

5 The Constitutional Court Interpretation of ‘Indigenous Belief’: An Islamic and 1945 Constitution Perspectives by Muchammad Ichsan, and Nanik Prasetyoningsih … 37

6 Role of Harmonization and Unification in the Perspective of China–Pakistan Economic Corridor Physical Infrastructure and Applicable Laws by Rao Qasim Idrees, Zaheer Iqbal Cheema, and Jawad Riaz … 45

7 Brief Analysis of the Dispute Resolution Methods through Mediation in Romania by Claudiu Ignat … 55

8 Conceptual and Categorical Framework in the Sphere of Prevention of Child Neglect and Juvenile Delinquency: Comparative Analysis by Ekaterina Ilgova, Natalia Dorodonova, Mikhail Gorbachev, and Ekaterina Evstifeeva … 59

9 Features of Legal Regulation of the Procedure for the Consideration of Labor Disputes in Kazakhstan by Ainur Zhenisovna Issayeva, Bolat Zholdasbekovich Aitimov, Zhanat Amandykovna Issayeva, Madina Koishibayevna Zhussupbekova, Saltanat Saidakhmetovna Tinistanova, and Akzada Alaidarkyzy Madaliyeva … 65

10 The Impact of Environmental Law on the Development of the City of Manado, Indonesia by Flora Pricilla Kalalo … 74

Spring 2020 Volume XI, Issue 1(47)

Editor in Chief Mădălina Constantinescu Spiru Haret University, Romania

Assistant Editor Popîrlan Cristina University of Craiova, Romania

Rajmund Mirdala Technical University of Kosice, Slovakia

Editorial Advisory Board

Huseyin Arasli Eastern Mediterranean University, North Cyprus

Bădescu Mihai Bucharest University of Economic Studies, Romania

Jean-Paul Gaertner Ecole de Management de Strasbourg, France

Shankar Gargh Editor in Chief of Advanced in Management, India

Anthony J. Greco University of Louisiana-Lafayette, USA

Arvi Kuura Pärnu College, University of Tartu, Estonia

Piotr Misztal Technical University of Radom, Economic Department, Poland

Adrian Cristian Moise Spiru Haret University, Romania

Peter Sturm Université de Grenoble 1 Joseph Fourier, France

Rajesh K. Pillania Management Development Institute, India

Russell Pittman International Technical Assistance Economic Analysis Group Antitrust Division, USA

Rachel Price-Kreitz Ecole de Management de Strasbourg, France

Laura Ungureanu Spiru Haret University Romania

Hans-Jürgen Weißbach, University of Applied Sciences - Frankfurt am Main, Germany


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11 Monitoring as a Tool for Improvement of Modern Regional Anti-Corruption Policy in Russia

by Zemfira, M., Kazachkova, and Elena, B., Kozlova … 80

12 Artificial Intelligence as A New Category of Civil Law by Elena Anatol'yevna Kirillova, Oleg Evgenyevich Blinkov, Natalija Ivanovna Ogneva, Aleksey Sergeevich Vrazhnov, and Natal'ja Vladimirovna Sergeeva … 91

13 International Practice of Provision of Guarantees for Implementation of Investment Projects by Mikhail Evgenievich Kosov, Aleksandr Victorovich Sigarev, Sergey Yuryevich Popkov, Ksenia Valerievna Ekimova, and Alexander Mikhailovich Fedotov … 99

14 New Religious Movements in a Secular State by Maria Sergeyevna Lavrrentieva, Mikhail Mikhailovich Turkin, Evgenysergeevich Kuchenin, Maria Alexandrovna Volkova, and Allaefratovna Zolotareva … 107

15 The Implementation of Sinking Illegal Fishing Vessels Policy towards the Bilateral Relation between Indonesia – Malaysia: A Case Study in Tarakan by M. Adnan Madjid, Widodo, Eko G. Samudro, and Tutut Herawan … 114

16 An Obligation of Corporate Criminal Liability in the Case of Non-Implementation of Occupational Health and Safety (OHS) by Parningotan Malau, and Alvi Syahrin … 121

17 Issues in Local Self-Government Reform in Russia by Saria Nanba, and Emil Alimov … 136

18 Legal Regulation in Digital Medicine by M.A. Osadchuk, A.M. Osadchuk, N.V. Kireeva, and M.V. Trushin … 148

19 Concept of Restitution Application as a Form of Corporate Criminal Liability in Law Enforcement towards Human Trafficking Criminal Act by H Radea Respati Paramudhita, Sigid Suseno, and Lies Sulistiani … 156

20 Sovereign Rights of the State and the Scope of their Implementation in the Context of Development of the International Human Rights Law

by Iryna Protsenko, and Кostiantyn Savchuk … 164

ASERS Publishing Copyright © 2020, by ASERS® Publishing. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Romanian Copyright, Designs and Patents Law, without the permission in writing of the Publisher. Requests to the Publisher should be addressed to the Permissions Department of ASERS Publishing: [email protected] and [email protected] http://journals.aserspublishing.eu ISSN 2068-696X Journal DOI: https://doi.org/10.14505/jarle Journal’s Issue DOI: https://doi.org/10.14505/jarle.v11.1(47).00



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21 Development of the Institution of Arbitration in Kazakhstan: Problems of Theory and Practice by Ardak Shaimenova, Gulzhazira Ilyassova, Yevgeniya Klyuyeva, and Ainura Khashimova … 169

22 Safety Issues of the Russian Educational System

by Ekaterina Zakarievna Sidorova, Alexey Mikhailovich Vasiliev, Sergei Igorevich Pelevin, Vladimir Viktorovich Tarubarov, and Viktoria Yurievna Okruzhko … 187

23 Politics of Legal in Nominee Agreement and its Practice in Indonesia by Suparji … 196

24 Legal Simplification of Land Regulation Associated with Increased Investment as the Basis for Conceptualization of the Omnibus Law by Tarmizi … 203

25 Privacy in Cyberspace: Islamic Republic of Iran Perspective by Asadollah Yavari, and Saeedeh Mazinanian … 208

26 No-Spouse Employment and the Problem of the Constitutional Court of Indonesia by I. Gede Yusa, Hermanto Bagus, and Nyoman Mas Aryani … 214

27 Legal Framework for Regulating the Protection of the Rights of Older People: The Case of Kazakhstan by Serikhan Adylgazy, Kanat Kozhabek, Zhazira Omirali, Galym Teleuyev, and Ainur Darhanbayeva … 227

28 Structuring Relations in Civil Law after the Termination of Relations between Subjects by Viktor S. Dergachov, Valentyna A. Vasylyeva, Ali Kabaha, Alexandr A. Gribincea, and Denys L. Kovach … 237

29 The Methodology for the Evaluation of Youth Economic Potential: Revealing the Resources for Regional Development by Olga Chernova, Ludmila Matveeva, and Elena Mikhalkina … 246

30 Social Entrepreneurship and Microfinance in Kenya by Haileslasie Tadele … 256

ASERS Publishing Copyright © 2020, by ASERS® Publishing. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Romanian Copyright, Designs and Patents Law, without the permission in writing of the Publisher. Requests to the Publisher should be addressed to the Permissions Department of ASERS Publishing: [email protected] and [email protected] http://journals.aserspublishing.eu ISSN 2068-696X Journal DOI: https://doi.org/10.14505/jarle Journal’s Issue DOI: https://doi.org/10.14505/jarle.v11.1(47).00



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Volume XI, Issue 3(49) and 4(50), Summer 2019 Journal of Advanced Research in Law and Economics


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No-Spouse Employment and the Problem

of the Constitutional Court of Indonesia

I. Gede YUSA Department of Constitutional Law, Faculty of Law, Udayana University, Indonesia

[email protected], [email protected]

Bagus HERMANTO Department of Constitutional Law, Faculty of Law, Udayana University, Indonesia


Nyoman Mas ARYANI Department of Constitutional Law, Faculty of Law, Udayana University, Indonesia


Suggested Citation: Yusa, I.G., Hermanto, B., and Aryani, N.M. 2020. No-Spouse Employment and the Problem of the Constitutional Court of Indonesia, Journal of Advanced Research in Law and Economics, Volume XI, Spring, 1(47): 214 – 226. DOI: 10.14505/jarle.v11.1(47).26. Available from: http://journals.aserspublishing.eu/jarle/index

Article’s History: Received 15 December, 2019; Received in revised form 18 January, 2020; Accepted 10 February, 2020; Published 31 March, 2020. Copyright © 2020, by ASERS® Publishing. All rights reserved.

Abstract: The role of Constitutional Court as the protector of human rights related with the effort to guarantee the human rights also the worker’s rights with their decision. The decision in this study related with constitutionality of no-spouse employment norms. This study aims to examine the constitutionality aspects related with no-spouse employment policy related with human rightsor worker rights. This study is using statutory approach, conceptual approach and comparative studies concerning no-spouse employment policy. The results show that no-spouse employment policy is contrary with the Constitution and human rights legal instruments. Moreover, there is problem concerning the Decision of the Constitutional Court of Indonesia on the one hand is final and binding but non-executable automatically. This study to encourage the new paradigm to ensure the execution of the Decision of the Constitutional Court of Indonesia, in this context related with decision on the constitutionality no-spouse employment norms. Keywords: Constitutional Court; employment; Indonesia; no-spouse. JEL Classification: K00; K30; K31; K38.

Introduction This paper is specifically to study concerning with the constitutionality of no-spouse employment norms and the problem related with the Constitutional Court of Indonesia, in this concern, the characteristic and the legal binding of the decision of Constitutional Court of Indonesia.

This study is comprehensive discussing related the worker’s rights as stipulated in the national legal instruments inter alia 1945 Indonesia’s Constitution, 1987 Philippines Constitution, the Law and regulation in Indonesia and Philippines, also the international legal instruments in concern with this issue inter alia in the UDHR, ICCPR and ICESCR. This paper also discusses related the regulation and existence the no-spouse employment norm in Indonesia and Philippines as made by the state actor on the national regulation and the non-state actor on the work agreement or collective labor agreement. Moreover, this study is concern on the competence of the Constitutional Court of Indonesia and the Supreme Court of Philippines with the Decision of Constitutional Court

DOI: https://doi.org/10.14505/jarle.v11.1(47).26

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Number 13/PUU-XV/2017 and also the Decision of Supreme Court G. R. Number 164774 relating with no-spouse employment policy.

This paper is focused on the eradicating the no-spouse employment policy with unjustified the act of state actor and non-state actor to ensure no-spouse employment policy and how to ensure the Decision of Constitutional Court is respected and executed by state actor and non-state actor. 1. Research Background Working is one of human endeavor to fulfill their needs. By working, humans could fulfill their material needs, self-prestige, social status and others. Working for livelihoods for their family and maintaining its existence as human being as well as built a humanity civilization (Simmons 2009), so the right to work becomes inherent human rights that must be upheld and respected. Everyone, including workers is essentially entitled to be guaranteed and protected by their human rights (Philips 2014) must obtain legal protection for their human rights from acts of abuse (Handayani 2016) for example the protection from termination of employment (School 2007). Employers, workers, trade unions, and the government, will all efforts must seek protection and guarantees for eradicating the violation of worker’s rights on personal rights, economic rights and social rights spheres (Karmaza 2018).

However, the Article 153 Paragraph (1) the Law Number 13 Year 2003 concerning Employment [hereinafter referred to as the Indonesia’s Employment Law] regulates several reasons that prohibit employers from termination of employment for the workers (Novenanty 2016), in case with the enactment of no-spouse employment policy in this regulation to implementing anti-nepotism policies and reduce the conflicts associated with multiple family members within the same company (Howard 2008), with regulates this norms into a work agreement, company regulation or collective labor agreement.

The termination of employment to the workers whom has spouse-employment in the same company is the abuse of the constitution and the consideration of the Indonesia Employment Law that regulating the importance of protection and guarantee the basic rights and equal treatment without discrimination against worker’s rights, to realize the worker’s welfare and their family. Through the Decision of the Constitutional Court of the Republic of Indonesia Number 13/PUU-XV/2017, the ruling is actually not related to reviewany legislation that specifically regulates the rights of the workers, but the ruling was on case of reviewing Article 153 Paragraph (1) (f) on Indonesia’s Employment Law againts the 1945 Indonesian Constitution, inter alia the rights for everyone to establish a family and to further descendants through legal marriage is stipulated as constitutional rights on the Article 28B Paragraph (1) 1945 Indonesia’s Constitution, also the rights for everyone to work as well as to obtain reward and just and decent treatment in work relationship as stipulated on Article 28D Paragraph (2) 1945 Indonesia’s Constitution.

This is stipulated in the provisions of Article 153 Paragraph (1) Indonesia Employment Law, which states that the prohibition of employers to terminate employment due to the reason that workers have blood ties and/or marital ties with another worker in one company, unless stipulated in a work agreement, company regulation or collective labor agreement. The phrase ‘unless stipulated in a work agreement, company regulation or collective labor agreement’ in Article 153 Paragraph (1) (f) Indonesia Employment Law becomes results termination of employment for workers who are married with another worker in same company or agency.

On the one hand, the provisions that stipulated in Article 153 Paragraph (1) (f) Indonesia Employment Law in a contrario means that in a company, workers may not have blood ties and/or marital ties with another workers. If this happens, it can be the justification for the termination of employment within concerned the workers. Even though, in reality the marriage is a fundamental right for everyone (Hermanto, Yusa 2018), in this concern also for workers have fundamental right (Benny, Sargeant, Jefferson 2008).

On the other hand, the provisions that stipulated in the Law Number 1 Year 1974 concerning Marriage [hereinafter referred to as the Indonesia’s Marriage Law] contains guarantees for marriage. One of the provisions is in Article 2 Paragraph (1) of the Indonesia’s Marriage Law states, ‘Marriage is legal, if it is carried out according to the law of each religion and its beliefs.’ In addition, the Marriage Law regulating the provisions on the prohibition of marriage, among others causes blood relations, relative relations, semenda relations, susuan relations and others as stipulated on Article 8 Indonesia’s Marriage Law. However, the Indonesia’s Marriage Law does not regulate provisions on the prohibition of marriage causes by no-spouse employment in same company or agency.

The existence of the Constitutional Court is reflected by its two different role with very different political logics concerning the resolution of dispute among multiple lawmakers and the protection of individual rights (Ginsburg, Elkins 2008). However, the broader problem continuing the existence of the Constitutional Court of Indonesia is concerning the characteristic of the decision made by Constitutional Court of Indonesia. On the other hand, the Decision made by Constitutional Court as stipulated on Article 24C Paragraph (1) The 1945 Indonesia’s Constitution


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and the Article 10 Paragraph (1) the Law of Constitutional Court of Indonesia is final and binding (Bedner 2013), it means that the Decision of Constitutional Court automatically has been legal binding force after its pronouncement by the Constitutional Judges and there is no other legal efforts that can be made (Faqih 2016), but on the execution sphere, the Decision of Constitutional Court of Indonesia classified as the non-executable decision or well known as the floating execution decision.

This paper discussed related with the relevance and constitutional aspect of the Decision of Constitutional of Indonesia related with no-spouse employment policy as the fulfillment of the Bill of International Human Rights (Tomuschat 2014) inter alia the International Covenant on Civil and Political Rights (ICCPR 1966) and the International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR 1966) as the further detailed descriptions of the Universal Declaration of Human Rights (UDHR 1948) and the other international legal instruments related human rights especially worker rights to unjustified the existence the no-spouse employment norm in Indonesia as made by the state actor on the national regulation and the non-state actor on the work agreement or collective labor agreement. Moreover, this study is concern on the competence of the Constitutional Court of Indonesia with the Decision of Constitutional Court Number 13/PUU-XV/2017 relating with no-spouse employment policy. This study also focused on the effort to eradicating the no-spouse employment policy with unjustified the act of state actor and non-state actor to ensure no-spouse employment policy and how to ensure the Decision of Constitutional Court is respected and executed by state actor and non-state actor. 2. Methodology Legal research method divided into normative legal research and empirical legal research (Sonata 2014). Based on this classification, this paper is classified as normative legal research by focusing on norms problems with prescriptive disciplines. This paper-based on preliminary research with collecting and analyzing primary legal materials and secondary legal materials using library research (Choudhury 2017) to answer the legal problem in this study using a statute approach, an approach conceptual approach, the case study approach and comparative approach is based on a legal material analysis technique in the form of a snowball system, and in the research process, and analysis and construction of legal material has been collected and processed. 3. Case Studies 3.1. The Verdict or Judge’s Consideration of the Decision of the Constitutional Court of Indonesia Number 13/PUU-XV/2017 Concerning the Constitutional Review of the Law of the Republic of Indonesia Number 13 Year 2003 Concerning Employment The Constitutional Court in carrying out its function as protector of constitutional rights including worker’s rights, one of them through the Decision of Constitutional Court of Indonesia Number 13/PUU-XV/2017 concerning the prohibition of marriage for workers in same company.

The verdict states that the phrase ‘except as stipulated in a work agreement, company regulation or collective labor agreement’ in Article 153 Paragraph (1) (f) the Indonesia’s Employment Law, which reads in full, ‘Employers are prohibited from terminating employment due to: f. workers have blood ties and/or marital ties with other workers in same company, except as stipulated in work agreement, company regulations, or collective labor agreements.’

In this decision, Article 153 Paragraph (1) (f) of the Indonesia’s Employment Law is contrary to the Indonesian Constitution and does not have binding legal force or is commonly stated as a legally null and void decision (Omara 2018).

In the legal considerations, the Constitutional Court has considered the legal arguments submitted by the Petitioners, inter alia: First, the article a quo limits the right to form families and to continue the descent through legal marriage, thus violating Article 28B Paragraph (1) of the 1945 Indonesia Constitution; Secondly, the article a quo eliminates the guarantee of work and the right to a decent livelihood and is rewarded with fair treatment in labor relations, thus violating the provisions of Article 28D Paragraph (1) of the 1945 Indonesia Constitution.

Based on the legal arguments submitted by the Petitioner, the House of Representatives, the President, the Indonesian Employers Association (APINDO), and the State Electricity Company, Ltd. (PLN), the Constitutional Court provides a constitutional interpretation which is the basis for granting constitutional review of the Article 153 Paragraph (1) (f), inter alia: First, the right to obtain fair and proper treatment in employment relations as guaranteed in Article 28D Paragraph (2) of the 1945 Indonesia’s Constitution is classified as economic, social and cultural rights that require an active role of the state; Secondly, the fulfillment of the right to obtain proper and fair treatment in employment relations and the right to form a family and continue the descent through marriage is the responsibility of the state as stipulated in Article 28I Paragraph (4) of the 1945 Indonesia’s Constitution; Third, restrictions in the


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a quo article aimed at building professional working conditions and preventing conflicts of interest do not fulfill the constitutional limitation requirements as stated in Article 28J Paragraph (2) of the 1945 Indonesia’s Constitution.

The constitutional Judges consistently use the method of interpreting ethical constitutions (Kay 2009). This analysis is based on the judges argument that emphasizes the human rights in the constitution through consideration of morality (Safaat, Widiarto, Suroso 2017) that blood ties or marital relations are destiny that cannot be planned or avoided. For this reason, limiting the constitutional right to get a job and form a family cannot be accepted as a constitutionally valid reason (Winata, Putri 2019).

Besides the constitutional interpretation of the articles of the constitution, the Constitutional Court also considers two arguments, inter alia: First, the right to work related to welfare rights is in line with guarantees which are also regulated in Article 38 Paragraph (1) the Law of the Republic of Indonesia Number 39 Year 1999 concerning human rights, Article (23) Paragraph (1) the UDHR, and Article 6 Paragraph (1) the ICESCR; Secondly, the unbalanced position between employers and workers, the contractual freedom which is one of the legal requirements of the agreement is not fully fulfilled, so that the doctrine arguments of pacta sunt servanda based on Article 1338 the Civil Code of Indonesia is irrelevant.

The reasoning of the legal consideration from the judges in this decision is very important because there will be found the basis of Constitutional Justice to answer the problem of constitutionality of the norms of law in this decision, besides, in legal considerations there is guidance desired by the constitution according to the interpretation of constitutional justices, so that judgments are binding as one integral unit with the ruling of the Constitutional Court. For this reason, based on constitutional rationalization in the legal considerations of the decision, it was found that the main legal considerations to made legally null and void decision for the Article 153 Paragraph (1) (f) of the Indonesia’s Employment Law because this article is contrary with the right to work and decent treatment in work relationship as guaranteed in Article 28D Paragraph (2) the 1945 Indonesia’s Constitution, Article 38 Paragraph (1) and (2) the Indonesia’s Human Rights Law, Article 6 Paragraph (1) the ICESCR, and Article 23 Paragraph (1) the UDHR. 3.2. The Verdict or Judge’s Consideration of the Decision of the Supreme Court of Philippines G.R. Number 164774 (Star Paper Corporation v.s. Symbol, Comia and Estrella) Ronaldo D. Simbol worked at the Star Paper Corporation, a paper producer company in the Philippines since 1993. In 1998, he married Alma Dayrit who also worked at the company. Before they got married, Josephine Ongsitco as the Human Resource Department Manager, suggested that one of the couples resign, following company regulations. Symbol was resigned that year. Wilfreda N. Comia has also been an employee of the company since 1997, then married Howard Comia, his co-worker, in 2000. On Ongsitco’s suggestion, he resigned. Another employee named Estrella began being employed by Star Paper in 1994, then he met his co-worker, Luisito Zuiga, and became pregnant out of wedlock. Star Paper could have dismissed him on the basis of misconduct, but he chose to resign in 1999. While working on Star Paper, the three of them were ordinary employees who did not hold management positions.

They then reported this to the Labor Arbitrator because they felt that the regulation violated Article 136 of the Philippines Labor Code. On May 31, 2001, Sol del Rosario’s Melquiades, the Arbitrator Labor refused the complaint, arguing that the regulation was the company’s prerogative. The three former Star Paper employees then appealed to the National Labor Relations Commission (NLRC), which was later rejected on January 11, 2002. They submitted Motion for Reconsideration, which was also rejected by NLRC on August 8, 2002, which they then appealed to Court of Appeals (Court of Appeals) through Petition for Certiorari. On August 3, 2004, Court of Appeals made a ruling which revoked the NLRC’s decision, declared termination of employment for the three illegal applicants, and ordered the company to hire all three applicants to return to their original positions and pay their salaries from the time they resigned.

This case also brought to the Supreme Court of Philippines. Star Paper Corporation, represented by Josephine Ongsitco and Sebastian Chua, stated that the Court of Appeal made a mistake because it decided that: (1) The company policy violated the constitutional rights related to the marriage and family of employees and violated Article 136 of the Philippines Labor Code; and (2) Resignation of the applicants was not voluntary. The Supreme Court justified this reason. On the other hand, Symbol, Comia and Estrella stated that termination of employment against them violated Article 136 of Philippines Labor Code which states that it is illegitimate that employers require that a female employee not marry, or she must resign if she is to marry, and not legitimate if the employer breaks the employment relationship or givers discriminatory treatment to female employees for reasons of marriage. Star Paper argued that although their policies seemed to violate the article, the marital status of


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employees did not get discriminated because female employees were not required to resign, but the two related employees had the right to decide who would resign.

The Philippines Supreme Court stated that Star Paper could not prove that the marriage relationship between Symbol and Comia with their partner could have a negative effect on the company. Star Paper states that their rules only apply when an employee marries another employee, so the Supreme Court does not declare that the regulation constitutes the implementation of unauthorized prerogatives. In addition, termination of employment with Estrella was declared invalid by the Supreme Court. 4. Research Results 4.1. Worker’s Rights: Concept, Sources, Guarantees of Enforcement and Regulation on the International and National Scale in Indonesia and Philippines The development of human rights has been passed a long history with development ideas is not limited to any modern western societies. Those ideas are considered universal to the whole of world (Marshfield 2018). The essence of human rights is to protect the dignity, to ensure that individuals are protected from the excesses of states or government. The human rights as fundamental rights (Eddyono 2016) or the rights that constitutionally shall to respected, protected, guaranteed and fulfilled by the state or government (Hermanto, Aryani 2019) as stipulated on Article 28I Paragraph (4) The Indonesia Constitution with the mandatory constitutional responsibility for government to enhancing the protection, advancement, enforcement and fulfillment of human rights, and those all shall to norms into the national statutory laws as stipulated on Article 28I Paragraph (5) The Indonesia Constitution, that the enforcement and protection of human rights in accordance with the principle of a democratic state based on law, shall be guaranteed, regulated and set out in statutory law and government regulations. In this context, human rights are fundamental to humankind itself including the worker rights in sphere civil, social and economic (Ryszhanova, Kozhakhmetov 2018).

In the Indonesia Constitution, regulation of worker’s rights including their children, women or men whom are part of the worker’s family, which is stated in following provisions:

Table 1. Articles in the 1945 Indonesia Constitution that Guarantee Workers Rights Related Article in Indonesia’s Constitution Article Substances

Article 27 (2) Every citizen shall be entitled for work and a living that is decent for humanity.

Article 28A Every person shall be entitled to live and be entitled to defend his/her life and living.

Article 28B (1) Every person shall be entitled to establish a family and to further descendants through legal marriage.

Article 28B (2) Every child shall be entitled to viability, to grow up, and to develop as well as be entitled for protection against violence and discrimination.

Article 28D (2) Every person shall be entitled to work as well as to obtain reward and just and decent treatment in work relationship.

Article 28E (1) Every person shall be free to embrace a religion and to worship according to his/her religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to reside in the territory of the state and to leave it, as well as be entitled to return.

Source: The 1945 Indonesian Constitution [After Fourth Amendment].

In this context, the 1945 Indonesia’s Constitution regulated the human rights inter alia the right to freedom of assembly, the right to life and defend life, the right to establish a family, the right to personal development, the right to be treated equally before the law, the right to religion, the right or freedom to express opinion, the right to gain the information, the right or freedom from torture and inhuman and degrading treatment, the right to living in a healthy environment, and the right to be free from any types of discriminative treatment (Hadiprayitno 2010) including the rights for workers as mentioned on the table 1.

In the context of the rights of workers as stipulated on the 1945 Indonesia’s Constitution as mentioned on table 1, regulating the guarantee, protection and respect to the worker’s rights for themselves, their families and their children on the civil, social, political and economic spheres. This guarantee are reflected with the recognition of the rights to work and just and decent treatment in work relationship, the guarantee to choose work, the rights to live and to defend their living, the rights to establish a family through legal marriage, and the children rights for their development and protection from the any types of discrimination and violence.


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In the Philippines Constitution, regulation of worker’s rights including their children, women or men whom are part of the worker’s family, which is stated in following provisions:

Table 2. Articles in the 1987 Philippines Constitution that Guarantee Workers Rights Related Article in Philippines Constitution Article Substances

Article II Declaration of Principles and State Policies Section 9

The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.

Article II Section 11 The State values the dignity of every human person and guarantees full respect for human rights.

Article II Section 12

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Source: The 1987 Philippines Constitution.

In the 1987 Philippines Constitution as mentioned on the table 2, adsorbs the substance of the UDHR, ICCPR and ICESCR, in this context, in concern with the worker’s rights, the Philippines Constitution regulated and guarantee the rights for promote full employment to ensure the prosperity and rising standard of living and quality of life in all spheres, guarantee the dignity as the human person and their human rights, and recognition of the sanctity of family life and protect-strengthen the family and their youth or children for civic efficiency and moral character to themselves.

No-Spouse Employment Concept and Policy in Indonesia and Philippines According to C. Boyd (Boyd 2010) some organizations or companies have employment rules that prohibit

or restrict the freedom of their employees concerning dating other employees, and this phenomenon is relatively modern phenomenon, with several different reasons to manage workplace romance with a number of alternative approaches, inter alia outright prohibition based on moral or religious grounds; outright prohibition based on inherent conflict of interest; outright prohibition based on productivity grounds; outright prohibition based on fear of sexual harassment lawsuits; the specific case of the prohibition on dating between superior and subordinate; and legal arrangements based on fear of sexual harassment law suits: ‘‘the love contract’’.

Almost the nations in the world has special concern on the no-spouse employment policy. The policy is regulating both on the developed countries likes the United States of America with the bona-fide cooperation (Howard 2008) and the developing countries in the world, likes Indonesia. As in any country, labor problem also happened in Indonesia and reflect the contradictory interests of workers and employers. On the one hand, the interests of workers focused on decent welfare and fulfillment of their rights, whereas employers interest focused to optimize profits (Setiyono, Chalmers 2018), meanwhile the government of Indonesia has sought to create neutral policies to accommodate their interests with the regulation on the Indonesia’s Employment Law.

The dynamic of this policy in Indonesia, is started with regulation in the provisions of Article 153 Paragraph (1) Indonesia Employment Law, which states that the prohibition of employers to terminate employment due to the reason that workers have blood ties and/or marital ties with another workers in one company, unless stipulated in a work agreement, company regulation or collective labor agreement.

Then, the dynamic of this policy in Philippines is prohibited as stipulated on Article 136 concerning Stipulation against Marriage on Labor Code of the Philippines Presidential Decree Number 442 regulating that it shall be unlawful for an employer to require as a condition of employment or continuation of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her marriage. 4.2. Study related to no-spouse Employment in the Decision of the Indonesia Constitutional Court and Decision of the Supreme Court of the Philippines The policy of no-spouse employment regulates in Indonesia based on Indonesia Labor Law in Law Number 13 of 2003 (Li 2017). In this case implicitly appears in the provisions of Article 153 paragraph (1) of the Labor Law, that review through the Constitutional Court Decision Number 13/PUU-XV/2017 which determines that the


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nomenclature of no-spouse employment is contrary to the norms stipulated in Article 28D Paragraph (2) of the 1945 Indonesian Constitution, Article 38 Paragraph (1)-(2) Law Number 39 of 1999 concerning Human Rights, Article 6 paragraph (1) ICESCR and Article 23 Paragraph (1) UDHR.

However, there appears to be a potential neglect of the implementation of this decision caused by economic and financial factors. This is reflected through the views of the Indonesian Employers’ Association (APINDO) as a representation of Entrepreneurs who that have an impact on the financial condition of business activities. Prefer to prevent this from happening by prohibiting the existence of marital relations between workers.

Judging from the content of the decision, it is clear that the Constitutional Court has stated that the provisions of the no-spouse employment are unconstitutional and there is a need for a response to the Constitutional Court’s decision to execute the Court’s ruling, as stated by Tom Ginsburg concerning the choice of response to the Judicial Court’s decision.

Table 3. Choice of Response to Judicial Court Decisions

Response Formally Constitutional Formally Unconstitutional

Accept Comply Ignore

Challenge Overrule/ Punish Attack

Source: Ginsburg, 2003, Judicial Review in New Democracies, Cambridge: Cambridge University Press, 77.

Tom Ginsburg (Ginsburg 2003) explained that the ‘comply’ response occurs when the legislator expects more benefits than costs in implementing the decision, the ‘override’ response arises when the benefit is deemed less favorable for the executor of the decision, so the executor of the decision tries to ignore the court’s decision hoping that whatever enforcement of the decision by the court or other institutions is not carried out effectively, the ‘overwrite’ decision through normal procedures for example by ratifying constitutional amendments or other available procedures, the final response is ‘counterattacking’ in various ways, such as reducing jurisdiction or the effectiveness of its authority in handling cases, reducing or refusing to raise salaries, limiting facilities such as buildings and staff.

Tom Ginsburg gave an explanation; the first column represented a choice that was formally in accordance with a constitutional scheme by complying with a decision or using legal procedures to make changes in constitutionally accepted laws. The second column, on the other hand, represents a unconstitutional formal choice, namely by ignoring decisions that bind or attempt to fight a court outside the realm of constitutionally regulated procedures. This choice according to Ginsburg is a choice in practice that needs to be considered in developing constitutionality review to have a positive impact. Ginsburg explains what is meant by comply, ignore, overrules and counterattack. Based on this concept, it is very clear that the Government and Entrepreneurs have the potential to not only comply, but also ignore the decisions of the Constitutional Court. For this reason, a legal mechanism is needed to follow up on the decision of the Constitutional Court, especially to enforce decisions at the level of implementing regulations and rules made between employers and workers.

In this context, it is clear in pursuing the execution of the verdict, there are still further legal mechanisms that can be carried out in terms of enforcement of the verdict (Safta 2012). Meanwhile, the legal consequences of the Constitutional Court Decision Number 13/PUU-XV/2017 in the Indonesian Legal System, namely permitting workers/labor to have a marriage partner in same office or it can also be said that employers are prohibited from making work agreements that prohibit workers from having a marriage relationship in one office, so the occurrence of several potential neglect of the Constitutional Court ruling requires follow-up enforcement of decisions with legal mechanisms by other state institutions, both in the branches of executive, legislative and judicial power.

This seemed to turn around with the release of the verdict on the Decision of the Supreme Court of Philippines G.R. No. 164774 pronounced on April 12, 2006 on the case of the Paper Star Corporation versus Symbols, Comia and Estrella. This case specifically has been decided and carried out by the parties even though the Star Paper Corporation is challenging the applicant with a statement that their employment rule has been effective when the worker was married to the other worker’s, but the Supreme Court ruling stated that this rule was not the implementation of authentic prerogative right as stipulated in the Code of Employment was declared invalid.

In this context, there are a number of things that hinder the implementation of the Indonesian Constitutional Court Decision compared to the implementation of the Decision of the Supreme Court of Philippines, first, Political Factors, namely diverse backgrounds of different political conceptions, objectives and agendas, causing choices and policy preferences based on the interpretation of the 1945 Indonesia Constitution which could be different from the views of the Constitutional Court; second, Economic and Financial Factors, namely the large financial


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implications and economic situation that affect the financial situation, make policy makers and state administrators have difficulty adjusting to the decisions of the Constitutional Court; third, Communication Factors, namely the lack of optimal relations between state institutions to build intensive communication through socialization and information about changes to the constitutional system due to the decision of the Constitutional Court; fourth, the Clarity Factor, sometimes the verdict is unclear and vague, and there is the possibility of the existence of a conflict between legal considerations and ambitions, greatly influencing implementation. Fifth, the Fourth Strength Factor in Checks and Balances, namely the influence of additional organs in the form of independent commissions, socio-political forces in the community such as pressure groups, trade organizations, professional organizations, Community Social Institutions (LSM) including free press also put pressure public.

But it is inversely proportional to the decision of the Philippines Supreme Court supported by the the first, political factors, that are far more established in politics and democracy by all components of national political infrastructure. Second, the economic and financial factors of a group that can be ruled out for the realization of the Philippines Supreme Court’s decision; third, a good communication factor between all components or parties, namely Judicial Institution with all related components. Fourth, the implementation and compliance of the no-spouse employment policy is encouraged by the clarity of the Supreme Court’s ruling which is always consistent, and fifth, the success of putting the authority of the Philippines Supreme Court to be able to have a positive influence on additional organs in the form of independent commissions, socio-political forces in the community such as pressure groups, trade organizations, professional organizations, Community Social Institutions (LSM) as components national political infrastructure which also helped encourage the implementation and compliance of the decision of the Philippine Supreme Court without exception by the parties. 5. Discussions Article 24C Paragraph (1) of 1945 Indonesia’s Constitution states that the decision of the Constitutional Court is final. This means that the Constitutional Court Decision has had permanent legal force since it was read out in this trial of the Constitutional Court. Court decisions that have legal force still have binding legal powers to be implemented (Mietzner 2010). In contrast to ordinary court decisions that only binding the parties, the Constitutional Court Decision in the case of judicial review binding all components of the nation, both state administrators and citizens (Laksono, Sudarsono, Hidayat, Safaat 2018).

In the case of judicial review, the norms of the Law which are abstract and general binding are review. Although the basis of the petition for review is the existence of the constitutional rights of the applicant who has been harmed, the actual action is to represent the legal interests of the entire community, namely the establishment of the constitution (Dressel, Bünte 2014). The position of forming a law, the House of Representatives and the President, not as defendants or defendants who must be responsible for mistakes made. The actors are only as related parties who provide information about the background and purpose of the provisions of the Law being applied. This is intended so that the provisions that review are not interpreted in the view of the applicant or the Constitutional Court, but also according to the legislators, so that legal beliefs can be obtained whether they are contrary to the constitution (Nardi 2018). Therefore, those who are bound to implement the Decision of the Constitutional Court are not only and must no always form a law, but all parties related to the provisions decided by the Constitutional Court since the verdict was read.

Because the decision of the Constitutional Court is binding on the public, the parties related to the implementation of the provisions of the Law that have been decided by the Constitutional Court must implement the decision. However, considering that the norm in the Law is a unitary system, there is an implementation of a decision that must go through certain stages, depending on the substance of the decision.

Specifically relating to the binding power of the decision of the Constitutional Court, referring to the provisions of the Article 57 Paragraph (1) – (3) of the Indonesia’s Constitutional Court Law, namely:

(1) A judgment of the Constitutional Court whose verdict declares that the material content of a section, article, and/or part of a law referred to is contrary to the Constitution of the State of the Republic of Indonesia of the Year 1945, such material content of a section, article, and/or part of the law referred to does not have legal binding force;

(2) A judgment of the Constitutional Court whose verdict declares that the enactment of a law referred to does not comply with the provisions regarding enactment of laws pursuant to the Constitution of the State of the Republic of Indonesia of the Year 1945, the law referred to has no legal binding force.

(2a) A judgment of the Constitutional Court shall not contain: (a) a verdict other than as referred to in section (1) and section (2); (b) a ruling to the law makers; and


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(c) a norm formulation in lieu of a norm of the law declared to be contrary to the Constitution of the State of the Republic of Indonesia of the Year 1945.

(3) A judgment of the Constitutional Court granting a petition shall be contained in the State Gazette of the Republic of Indonesia within a time period of 30 (thirty) business days at the longest as of the judgment is pronounced.

With the reference to these provisions, the Constitutional Court ruling is categorized into the type of decision declaratoir constitutief. Declaratoir means decisions where the judge merely states what becomes law, does not commit punishment. This can be seen in the law verdict ruling stating that the content, paragraphs, articles and/or parts of the law do not have binding legal force. Constitutief means a decision stating the absence of a legal situation and/or creating a new legal condition. In contrast to the nature of the comdemnatoir ruling, it is a verdict that can be carried out, namely a judgment that contains punishments, in which the losing party is punished for doing something. Therefore, after the decision of the Constitutional Court which states that a law does not apply binding because of contradiction with the constitution, then the decision itself also creates a new legal condition.

However, as a condition to be known by the public, as Article 57 Paragraph (3) of the Indonesia’s Constitutional Court Law states that the Constitutional Court Decision that grants the request must be published in the State Gazette within 30 (thirty) working days from the decision was pronounced. If the government or other state institutions do not comply with the decision and still continue to treat the law that has been declared the Constitutional Court has no legal binding force, it is an action whose supervision is in the legal and state mechanism itself. Acts carried out on the basis of a law that has been declared null and not having binding legal force are illegal. If the legal consequences occur in the form of financial losses, the state apparatus or state institution will bear the personal liability.

The decision of the Constitutional Court has been stated before the court is open to the public, can have 3 (three) legal binding, namely: (1) binding strength; (2) strength of evidence; and (3) executive force. This type of power of decision is known in the theory of civil procedural law in general and this can be applied in the procedural law of the Constitutional Court (Prang 2011).

Strength binding the decision of the Constitutional Court, in contrast to ordinary court decisions, does not only include litigants, namely the Petitioner, Government, Parliament or related parties are permitted to enter the case, but the decision is also binding on all people, state institutions and legal entities in territory of the Republic of Indonesia. He acts as a law as the law was created by lawmakers. The Constitutional Court Judge is said to be a negative legislator whose decision is ergaomnes, which is addressed to everyone.

In contrast to the Supreme Court’s decision to be inter partes which only binding the parties to the dispute and its scope is a general court, it is permissible to make legal efforts inter alia appeals, cassations and others. The decision of the Constitutional Court to abolish one legal situation or create certain rights or authorities will bring certain consequences that affect one legal situation or rights and/or authority, and are related to judicial review, as stipulated in Article 58 of the Indonesia’s Constitutional Court Law reads, ‘a law being reviewed by the Constitutional Court remains in force, pending to a judgment declaring that the law referred to is contrary to the Constitution of the State of the Republic of Indonesia of the Year 1945.’ That is, the ruling of the Constitutional Court which states one law contradicts with a constitution and no binding power, it must not be retroactive. Legal consequences arising from the ruling are calculated from the time decision is pronounced in a session open to the public. Therefore, the legal consequences arising from the enactment of a law since it was promulgated until the verdict was declared stating that the law does not have binding legal force, is still valid and binding (Dobbins 2009).

In the judiciary tradition that has been developing for a long time, a decision must have a binding nature, because of the absolute authority of the judiciary to conduct judgment. So, the decision that has legal force still has executorial power and if necessary by force (met sterke arm).

In this case, the Constitutional Court judge is the legislator and the decision applies as a law, but does not require changes to be made with amendments to laws which certain parts are declared contrary to the 1945 Indonesia’s Constitution and do not have a legally binding force, when viewed from the perspective of the execution of the Constitutional Court Decision has been deemed materialized by the decision in the State Gazette as stipulated in Article 57 Paragraph (3) of the Indonesia’s Constitutional Court Law. However, it will be difficult to know and be understood by all those who are bound by the decisions of the Constitutional Court without changes made in accordance with the decisions of the Constitutional Court, at least by the integration of the Constitutional Court decision in the laws issued by the State Secretariat. Even though, the verdict is still considered to have executorial powers as well as decision in ordinary court procedures, it does not give the applicant the right to amend the law that has been review by the Constitutional Court.


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This problem is described as a paradoxical situation felt by the Constitutional Court besides the State Administrative Court, because there is no executorial institution for the decisions of the two institutions, and there is no threat of serious sanctions if they do not carry out the decision. So far, the implementation of the Constitutional Court’s ruling only relies on the good relations of the Constitutional Court as a judicial institution with the legislative organs, as well as the organ implementing the law. So, if there are no good intentions from the three institutions, then the decision is difficult to execute and realize.

This situation certainly has clearly shown that the existence of the Constitutional Court until now has not yet had a strong bargaining power as the only high state institution that has the authority to guard and interpret the constitution. Moreover, the existence of the Constitutional Court does not have the realm and authority to take part in the process of implementing its own decisions. It is not wrong to say that the Constitutional Court is the weakest branch of power in constitutional structures among other branches of state power (the least dangerous power, with no purse nor sword). If these conditions continue to be allowed, the development and position of the Constitutional Court in the constitutional structure in Indonesia will only become a mere formality, besides the level of public confidence in the Constitutional Court will decline. In turn, the Constitutional Court lost its status as an interpreter and guardian of the constitution as the original intent of the establishment of the Constitutional Court. The logical consequence of this is that the Constitutional Court will be abandoned by justice seekers.

In the aspect of legal certainty, the problem as explained above is certainly a very fundamental problem. The Constitutional Court as the guardian of the Constitution and the form of institutionalization towards the supremacy of the constitution will certainly be far from its ideals (Tomkina, Yakovliev 2018). It can be said that the implementation of the Constitutional Court’s decision consequently is the main indicator of the establishment of constitutional supremacy. In a broader scope, this is a reflection of the establishment of a rule of law (Balabiyev 2016). The Constitutional Court decision is only a written decision, it is not implemented and can injure the coronation of the rule of law.

The mandate of the 1945 Indonesia’s Constitution was later derived into the Indonesia’s Constitutional Court Law. The Article 10 Paragraph (1) mentioned that, ‘The Constitutional Court has the authority to adjudicate at the first and final instance, whose judgment shall be final …’. The final means that the Decision of Constitutional Court immediately obtains permanent legal force since it was pronounced and no legal remedy can be taken. Further provisions to clarify the legal strength of the decision of the Constitutional Court can be seen in Article 47 which states, ‘a judgment of the Constitutional Court shall obtain permanent legal force as of its complete pronouncement in a plenary session open to the public.’ Provisions regarding the nature of the Constitutional Court decision as a form of derivation from the 1945 Indonesia’s Constitution can also be found in Article 29 Paragraph (1) The Law Number 48 Year 2009 concerning Judicial Power), which states that, ‘The Constitutional Court has the authority to adjudicate at the first and last, decision is final …’.

Referring to the juridical basis above, the word Binding was not found as the nature of the Constitutional Court's ruling which should be combined with the final nature. Both according to the 1945 Constitution, Law Number 24 of 2003, as well as Law Number 48 of 2009, only confirms that the decision of the Constitutional Court is final. This was a fatal mistake made by the People's Consultative Assembly in formulating an amendment to the 1945 Constitution. The articulation of the final verdict was incommensurable, resulting in the consequence that the decision normatively had to be binding. Simply put, the final verdict must also be followed by the word binding. Normative articulation of final and binding decisions even though they have been explicitly stated in the constitution and other juridical grounds governing the Constitutional Court, often also find obstacles in the form of not being followed up by the address of the decision, especially if they are not included. Every final decision should also be binding and cannot be repeated. Not clearly mentioning the binding clause in a final decision will ultimately result in the decision of the floating Constitutional Court.

On the other hand it states that opinions do not include binding clauses combined with final clauses so reducing their binding strength is an inappropriate opinion. This view is based on Article 47 of Law Number 24 of 2003, that the final first and final level of the decision obtains permanent legal force since it was stated in a public session that is ergaomnes, namely a decision whose legal effect binds all parties (Maulidi 2017). The meaning of the binding meaning is implicit in the final decision. Moreover, in the laws and regulations it has been stated that the Constitutional Court's decision is the first and last level, which means that no further legal measures can be taken. Thus, the decision directly has a permanent legal force and obtains binding legal powers to be implemented.

In its development, binding words then appeared in Law Number 8 of 2011 concerning Amendments to Law Number 24 of 2003 concerning the Constitutional Court which amended the explanation of Article 10 paragraph (1) so that it reads ‘The Constitutional Court Decision is final, namely the decision of the Constitutional Court


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immediately obtain permanent legal force since it was said and no legal remedy can be taken. The final nature of the Constitutional Court ruling in this Law also includes final and binding legal force.

The provisions of the final and binding nature of the Constitutional Court's decision are also strengthened by the existence of Decision Number 129 / PUU-VII / 2009 and Decision Number 36 / PUU-IX / 2011. Decision Number 129 / PUU-VII / 2009 examines Article 10 paragraph (1) of Law Number 23 of 2004. The decision indicates that the Constitutional Court stated that the petition of the applicants was not acceptable. Likewise, in the Decision Number 36 / PUU-IX / 2011 which also tests Article 10 paragraph (1) letter a of Law Number 24 Year 2003 concerning the Constitutional Court because it is considered contrary to Article 28I paragraph (2) of the 1945 Constitution. The Court has the final and binding nature of the decision. The final decision means that the Constitutional Court's decision is the first attempt (the first resort) as well as the last resort (the last resort) for justice seekers.

The final nature of the Constitutional Court's decision shows at least 3 basic things, namely (Runtuwene, 2015): First, the Court's decision directly obtained legal force. Second, the Constitutional Court's decision is the first and last level, so there are no other legal measures that can be taken, such as appeals or appeals to the general court. Decisions that cannot be made further legal means that they have permanent legal force and directly obtain binding power. The absence of further legal efforts is intentionally made with the intention that the Constitutional Court through its decision can resolve the problem and provide legal certainty quickly in accordance with the principles of justice quickly and simply. Third, because it has obtained legal force, the Constitutional Court's decision has legal consequences for all parties relating to the decision. In this third context, the Constitutional Court ruling is different from the ordinary court decision, not only includes litigants, namely the applicant, the government, the House of Representatives (DPR) / Regional Representative Council (DPD) or related parties who are permitted to enter the case process, but also binding on all parties and all people, state institutions, and legal entities that are within the jurisdiction of the territory of the Unitary State of the Republic of Indonesia. Therefore, the decision of the Constitutional Court is said to be ergaomnes, which is addressed to everyone. The difference in the nature of binding to the Constitutional Court that applies to all parties is because the nature of the norm in the form of the law being tested and the norms that are used as the basis for testing, namely the constitution, are abstract and impersonal norms.

In this context, the underlying foundation of the Constitutional Court's decision is a decision at the first level and at the same time the last level can be seen from at least two fundamental reasons. First, the Constitutional Court's decision is final not only that the Constitutional Court is the only judicial institution that carries out its authority, in the sense that there is no other institution or even a higher judicial institution which also has the same authority as the Constitutional Court, but more from that, the decision of the Constitutional Court is attached to the nature of the constitutional position as the highest law so that no other law has a higher position than that. This is because the case faced by the Constitutional Court to be resolved, and makes the constitution as a test stone or the basis of the test, the final result or decision of the case is absolutely final, because it is no longer possible to do further efforts, and more test stones high besides the constitution. This means that the final decision of the Constitutional Court is a logical consequence of a rule of law which places the constitution as its highest law. Second, the final decision of the Constitutional Court is an effort to safeguard and protect the authority of the constitutional court (Ghofur 2009). The fundamental reason for this opinion is that, if the Constitutional Court accommodates legal remedies, then it certainly does not make any difference from the general court, which is usually a case that a legal action against the verdict will take a very long time. As a result, the parties will experience hostility, both time, energy and costs, all of which are contrary to the principle of justice which is carried out quickly, simply and at a low cost. Robert Dahl also said something similar. The Court is almost powerless to affect the course of national policy. This is because the court’s rulings are not self-executing. Enforcement and implementation require the cooperation and coordination of all branches of government. Conclusions In this case there appears a problem related to the execution of the Constitutional Court ruling even though the Constitutional Court Decision is final and binding but there is no executorial institution and there is no threat of serious sanctions if it does not carry out the ruling. In practice, the issue relating to the provisions of the final and binding nature of the Constitutional Court's decision is also reinforced by the Decision Number 129 / PUU-VII / 2009 and Decision Number 36 / PUU-IX / 2011, and it is understood that the final decision means that the Constitutional Court decision is the first effort as well as the last resort (the last resort) for justice seekers, namely as a decision that immediately obtains legal power at the first and last level and has legal consequences for all parties relating to the decision.


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Through the issue of no-spouse employment norms that are tested and decided through the Constitutional Court Decision Number 13 / PUU-XV / 2017, it is clear that there are problems related to the implementation or execution of the decision driven by several factors, namely political factors, economic and financial factors, communication, the clarity of the decisions and factors influencing additional organs outside the Court's environment.

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jarle volume xi issue 1(47) spring 2020

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