With the implementation of Article 40 Act No. 3 Year 2005 on National Sports System (UU SKN), the Petitioner as an individual the human rights was not restricted or eliminated. That was stated by the Constitutional Court (MK) in the Verdict reading of the case No. 27/PUU-V/2007 on Friday, (22/2) at the Plenary Court Room of the Constitutional Court. Furthermore, according to the  Constitutional Court the reduction or elimination of Human Rights could exist if the Petitioner was forbidden to be a structural or public officer.

The Petitioner mentioned was Saleh Ismail Mukadar yang the Head of Indonesian Sports Committee (KONI) in Surabaya City. The Petitioner who is also Head of Commission E of East Java Provincional Parliament. Saleh considered the existence of Article 40 of UU SKN which stated: “A member of the management in national sports committee, provincional sports committee, regency / city sports committee is independent and not involved in activities from structural office and public office” was very discriminative therefore was against the constitution because it limited or restricted public officers to be in the management board of KONI.

According to the Constitutional Court, Article 40 of UU SKN did not regulate the limitation of Human Rights but it arranged the restriction for double position for structural officers and public officers. With the restriction which only applies for structural officers and public officers, there was not a single human right of the Petitioner as an individual (natuurlijke persoon) violated. The Petitioner’s rights were not incarcerated to improve himself collectively, did not lose rights for acknowledgement, sanctuary, and fair legal certainty, also not to be treated discriminatively with the existence of Article 40 of UU SKN.

Discrimination according to the Constitutional Court was to be treated differently on the same thing. On the other hand, it was not a discrimination if someone was treated differently over different matters. If the treatment on individual (every person) was not equal to the treatment towards the structural officers or public officers, that was not a discriminative action.

Even if the treatment was considered different, then even that thing was not against every person’s rights for fair treatment, security, protection and legal certainty. Because fairness itself contained two meanings, they are commutative fairness which provide equally to every person without seeing the service or achivements, and distributive fairness which provided every person equal to the service or achievements.

The fairness contained in Article 40 of UU SKN, according to the Constitutional Court, was a distributive fairness. The Fairness in this meaning could be used in determining requirements to meet to be in certain position. Those requirements could ne age limitation, education, experience, health condition, double position, etc..

Furthermore the Constitutional Court considered that restriction for structural officers and the rights of the officers not to have a double position as a member of the managing board of Indonesian Sports Committee (used to be KONI) as stated in Article 40 of UU SKN was not an open choice of policy for legislators with the intention merely to create a more effective good governance.

The same thing as differenciation of management for double position between the management board of National Sports Committee with the Central Management of a Sport Field was also a legal policy. In other words, that was up to the lawmakers to arrange, whether to make it equal or different. Because between National Sports Committee and the Central Organization of Sports there were similarities but there were also differences.

Because of that, the Constitutional Court concluded that the petition was unreasonable and “the stipulation in Article 40 of UU SKN did not violate Article 28C Paragraph (2), Article 28D Paragraph (1) and Article 28I Paragraph (2) of the 1945 Constitution,” said the Chief Justice of the Constitutional Court, Jimly Asshiddiqie, in an open trial for public.  (Luthfi Widagdo Eddyono / Yogi Djatnika)


Monday, February 25, 2008 | 09:14 WIB 201
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