JUDGE’S DECISION ON WORK TERMINATION DISPUTE IN INDONESIA AFTER CONSTITUTIONAL COURT DECISION NUMBER 37/PUU-IX/2011

Testing the provision of Article 155 section (2) Law Number 13 of 2003 on Manpower has been decided by the Constitutional Court (CC) through decision Number 37/PUU/IX/2011. Prior to the Constitutional Court decision, there are many various interpretations of undetermined clause. The Constitutional Court firmly states that the undetermined clause must be interpreted as “having a permanent legal force ". This study aims to analyze how the judges dismissed dispute of work termination cases in Indonesia after the decision. The research applied juridical normative method by using secondary data literature such as legal documents, previous studies and other references which are relevant to the judges' decision within the Supreme Court after the Constitutional Court decision. Based on the analysis temporary result, the judges within the Supreme Court in 3 regions (Padang, Pekanbaru and Jakarta Pusat) and the Supreme Court itself are not practically guided by the Constitutional Court decision. It obviously results in the lack of legal certainty for the parties, especially workers. Keyword: Constitutional Court, Industrial Relation Court, interpretation, Supreme Court.


Introduction
According to Article 24 section (2) Constitution 1945, judiciary power is conducted by two agents which are Supreme Court and Constitutional Court. 1 Therefore, the reformation in terms of law (Constitution 1945 Amendment) has determined that Supreme Court is no longer the only one judiciary power, but it is just one of the judiciary powers. 2 Supreme Court has a strategic position especially in law and state ad-ministration: first, to conduct a judicature in order to enforce the law; second, to adjudicate in appellate level; third, testify the regulations under the law; and fourth, to have any authority given by the law. 3Meanwhile, Constitutional Court in state administration is constructed: first, as constitutional guide that enforces constitutional justice among society.Second, to encourage and to guarantee the constitution to be respected and implemented consistently and responsibly by all of state components.Third, in the middle of the constitutional system weakness, it functions as an interpreter to maintain the constitutional spirit and take a part in the state and society sustainability. 4aw Number 13 year 2003 on Manpower (hereafter abbreviated as Manpower Law) stipulation drew many criticisms and refusals from Labor Union5 since the stipulation was initiated by the government through Ministry of Manpower and Transmigration which at that time was held by Jacob Nuwawea.Three months after the law legalization on 18th June 2003, the Legal Aid Institute (LBH) Jakarta filed a claim to the Manpower Law implementation through Supreme Court which then appeared in Constitutional Court trial.6 Not only the Manpower Law implementation, but the articles were also issued by manpower observer.One of them is the stipulation of Article 155 Section (2) Manpower Law that was requested to be testified in Constitutional court by three workers as well as labor issues observers (drg.Ugan Gandar, Ir.Eko Wahyu, and Ir.Rommel Antonius Ginting) on 1st June 2011.The article states: "As long as there is no decision from the institution for the industrial relations disputes settlement, the entrepreneur and the worker/laborer must keep on performing their obligations." The applicants (observers) asked for the constitutional interpretation upon the Article since its implementation invoked law uncertainty that against Article 28 D section (1) and (2) of Constitution 1945.By means, Article 155 section (2) Manpower Law along the phrase "undetermined" is interpreted until there is Industrial Relation Court decision that has permanent legal power (inkracht).
Finally, Constitutional Court through the decision Number 37/PUU/IX/2011 accepts the applicants' claim with the decisions as follows: 1.

Research Method
This research is normative law research.It sets law as a norm construction. 7The referred norm system is all about principles, norm, regulation convention, court decision, agreement and doctrine. 8The data source of this research is the issue in The Industrial Relation Court (IRC) in Padang District Court, The IRC on Pekanbaru District Court and Central Jakarta District Court in 2011 until 2015 as well as the official website of Indonesian Supreme Court that provides online directory decision on http://www.putusan.mahkamahagung.go.id.The research methods are qualitative and quantitative methods.By quantitative process, the researcher can answer the question on how the judge consideration especially judges of Supreme Court in dismissing the layoffs dispute especially related to process wage after the Constitutional Court Decision Number 37/PUU-IX/ 2011.Qualitatively, the researcher conducts deeper understanding by taking the decisions related to the process wage in 3 (three) IRCs and Supreme Courts.

Constitutional Court Authority and Judge Interpretation
The existence of Constitutional Court in Indonesia becomes one of Indonesian constitutional law discourses.9Furthermore, the Constitution 1945 provides authority to Constitutional Court to become constitutional guide.10Constitutional Court has an authority to testify the politics product which is law from People's Representative Council (DPR) that is considered against Constitution 1945.The authority is the most conducted authority by Constitutional Court.In Dutch Literature, the authority is known as toetzingrechts or "rights to test the law". 11In Allen and Thomson view, there are several toetzingrechts which are toetzingrechts as legislative review, toetzingrechts as executive review, and toetzingrechts as judicial review. 12In this case, Sri Sumantri explains that rights to testify material matter is an authority to examine and to evaluate whether the regulation content is convenient with the upper law or not and whether a particular authority (verordenende macht) has a right to set out particular regulation or not. 13The judiciary authority division of Supreme Court and Constitutional Court does not mean there is dualism judiciary power but it more emphasizes on each function.Supreme Court more emphasizes on its function through judiciaries that end up in Supreme Court while Constitutional Court emphasizes on the judiciary function in politics. 14he judicial review authority has caused an abstract authority or created a new authority which is to conjugate a constitution. 15The interpretation which is known by the word "hermenutik" or hermeneutics is a parable from English which is "hermeneutic" (adjective) that is translated into a condition or characteristic in an interpretation, while hermeneutics(noun) contains three meanings in an interpretation science; first, it is to know the meaning in the author's statements and words and a specific interpretation that points out text or holy book interpretation. 16However, some people said that interpretation comes from the Arabic word 'tafsir' which means explain or state.The word is taken from the word tafsirrah which refers to tool used by doctor to know patient's disease.The use of tafsir sticks to the meaning search in Quran.In interpreting the Quran meaning, the old muftis (Syafi'i Maliki, Hanafi, Ahmad Bin Hambal, Alghazali, Ibnu Timiyyah, Muhammad Abduh, Rasyid Rida, and others) used the supporting science such as the Lughat science, Nahwu, Tashrif Balaghah, Usul Fiqih, as well as Asbabun Nuzul. 17he law interpretation is a law discovery method.It is a law discovery method in which the rule exists but it is unclear to be implemented in the actual case.However, it might also happen if the judge has to inspect and try a case which do not have a specialized rule. 18The law discovery method consists of: 19 Firstly, the law interpretation including: 20 grammatical, historical, systematical, and sociological interpretations.The historical interpretation is divided into two interpretation sectors.First, the historical interpretation based on rules.Second, the interpretation based on law institution, or its history; second, the law construction that consists of: The Argumentum Peranalogium (analogical), the Argumentum a Contrario, and the constricting methodology of a rule of law which is too abstract, wide, and general so that it can be implemented in a certain case.
Therefore, the judge's decision quality has an important impact to the justice institution authority and the credibility. 21Nevertheless, the result of the law discovery method will arise a qualified decision, and caustically, it should be based on the law certainty, justice, and benefits principles. 22

Material Test Analysis of Article 155 section (2) on Constitution 1945
The case decision Number 37/PUU/IX/ 2011 is the decision model which calls off and states that the Article 15 section (2) Manpower law is legally Null and Void.The decision does have a wide and huge impact.It does not only give benefits for the justice seekers, but also can potentially cause a legal vacuum, 23 legal disorder, 24 even buying time for the law ma- ker. 25 The decision is, however, considered to be constitutive by looking its variety.Deklatoir means that the judge's decision is only to state a law.Being constitutive means that a de-cision states about the legal condition vacuum or create the new one. 26Therefore, when a constitution states that a law binds due to against Constitution 1945, the decision will automatically create a new legal condition. 27However, as a condition that public should know as it is explained in Article 57 section (3) Law Number 24 Year 2003, the supreme court's decision that grants an appeals must be recorded in State Gazette within 30 days since the decision is declared. 28he Constitutional judge panel through their decision has found law discovery to fill the legal vacuum.In line with Sens Clair doctrine, the law discovery conducted by the constitutional judge panel is based on the existing yet unclear rules.Both Manpower law and Industrial Relations Dispute Settlement law have managed the wages should be paid by the employer to the workers along the Work Termination process.However, these laws and their enforcement rules do not regulate clearly how long the wages must be paid.In addition, the Supreme Court make their finding that the phrase interpretation uncertainty against the Article 28 section (1) and (2) Constitution 1945. 29According to authors, the Supreme Court's judges, in stipulating the decision Number 37/PUU/IX/2011, have conducted a systematical interpretation because they have interpreted the law as a part of the whole law system.It means that none of the the law rules can be interpreted as if it stands alone.However, it should be well understood in accordance with the variety of other rules.In this case, the Article 155 section ( 2 The 3 cases been settled by the IRC and the Supreme Court judges, it can be seen that the judges have disregarded the Constitutional Court decision.In fact, if it is associated with the Constitutional Court authority as regulated in Article 24 C Section (1) Constitution 1945, it is stated that the Constitutional Court has the authority to adjudicate constitution cases at the first and final level of which the decision is final... 30 Furthermore, the provisions of Article 10 Law Number 24 Year 2003 on Constitutional Court determines the Constitutional Court decision is final and binding.Final means last of the checks series while binding is defined as "solidify, unite". 31It means that there is no more possibilities to take legal efforts as known to be conventional court, appeal, cassation and even review. 32

Suggestion
The Constitutional Court decision Number 37/PUU/IX/2011 should be the guideline for all parties, especially the IRC's and Supreme Court's judges.Therefore, it is important to establish an understanding at the judge's level in the Supreme Court that the process wage must be granted, calculated since the inception of the work termination dispute until the case is settled.

Table 1 .
) Manpower Law is connected with the Article 56 juncto Article 109 and 110 Law Number 2 Year 2004 on Industrial Relations Dispute Settlement.Based on the research of some decisions in three IRC (PHI) and Supreme Court that deal with the process wage after the existence of Supreme Court decision Number 37/PUU/IX/ 2011, the data collected are as follows: IRC Court Decision after Supreme Court Decision PDT.SUS/2012, the wage process was only granted for one month only because the Plaintiff has requested the Defendant to have his/ her work terminated by letter dated on January 6, 2010 and thereafter not to be employed.Therefore, according to Article 93 section 1 Manpower Law and Article 100 Industrial Relations Dispute Settlement Act, the work termination ended up on January 2010.Second, Case Number 030/G/2012/PHI.PBR at the IRC in Pekanbaru District Court which was decided on December 21, 2012 to grant the wage process for 8 months.However, at the Cassation level in the Supreme Court according to Decision No. 172K/PDT.SUS-PHI/2013 it was only granted for 6 months; Third, Case Number 11/PDT.Sus-PHI/2014/PN.Pdg in the IRC of Padang District Court which was settled on January 12, 2015, it was granted 9-month wage process (from April 2014 to December 2014).Yet, at the Supreme Court according to Decision 239 K/PDT.SUS-PHI/ 2015, it was only granted for 6 months only with consideration of the time length of the settlement process in accordance with Law Number 2 Year 2004 on Industrial Relations Dispute Settlement which takes approximately 6 (six) months.
JurnalMasalah-masalah Hukum, Vol.44 No. 4, October 2015, p. 515.  3amad Faiz, "Relevansi Doktrin Negative Legislator", Majalah Konstitusi, No 108, February 2016, p. 6-7.  3i Susanto, "Kewenangan Mahkamah Kontitusi sebagai Negative Bugdeter dalam Pengujian Undang-undang Anggaran Pendapatan dan Belanja Negara, Jurnal Kons-titusi, Vol. 14 No. 4, Desember 2017, p. 729. 37Saldi Isra, n.d., Negative Legislator, available on website: https://www.saldiisra.we.id/index.php/21-makalah/makalah1/302-negative-legislator.html,accessed on Februari 17 th , 2018 the worker, as long as the phrase "has not been determined is declared to have no binding force as long as it is not interpreted to have permanent legal force with the Constitutional Court's decision Number 37/PUU-IX/2011.Nevertheless, in the practice, the IRC's Judge in Padang District Court, the IRC's Judge in Pekanbaru District Court, the IRC's Judge in the Central Jakarta District Court and the Supreme Court's Judge do not based on and disregard the Constitutional Court decision which then results in a decision with no legal certainty related to the wage process in work termination.