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The Constitutional Court partially granted the petition in the test the constitutionality of Act No. 39 of 2008 concerning the Ministry of State. In its decision, the Court declared the explanation section that governs the position of deputy ministers in conflict with the Constitution of 1945. 

"Principal reasoned request by law for the most part," said Chief Justice of the Constitutional Court, Moh. Mahfud MD conclusion when reading the verdict no. 79/PUU-IX/2011, Tuesday (5/6) at the Plenary courtroom. Petition was filed by the National Movement for the Eradication of Corruption (GN-PK) represented by the Chairman of the GN-PK Adi Warman and the Secretary General of TB. Imamudin. 

According to the Court, the elucidation of Article 10 which provides that the deputy minister is a career officer and is not a member of the cabinet is not in sync with the provisions of Article 9 paragraph (1) of the Ministry of State. Because, according to the organizational structure of the ministry of the article consists of the elements: the leader of the Minister; assistant leader of the Secretariat-General; implementing the main tasks, namely the directorate-general; the inspectorate general superintendent; support, which is the body or center; and implementing the main tasks in the area and / or the foreign missions in accordance with statutory regulations."If the deputy minister designated as a career officer, has no position in the organizational structure of ministries, so that it raises just legal uncertainty, which means it is contradictory to Article 28D paragraph (1) of the 1945 Constitution," wrote the Court in its legal considerations. 

Court continued, considering that the onset of chaos in the implementation or legal issues in employment law and government bureaucracy occurs because the sources of the Explanation of Article 10 of the Ministry of State, then the explanation is the existence of the Court which raises just legal uncertainty in the implementation of the law and have limited or handcuff exclusive authority of the President in terms of appoint and dismiss ministers / deputy ministers under the 1945 Constitution so that the Company shall be declared unconstitutional."Because of the existence of the current deputy minister was appointed, among others, based on Article 10 and the explanation in the Act a quo, the Court is the position of deputy ministers should be adjusted returns as the exclusive authority of President under this Court’s decision," said Court. 

"Therefore, all the Presidential appointment of each deputy minister needs to be updated to be a product that fits with the exclusive authority of the President and to no longer contain the legal uncertainty."In addition, according to the Court, there are some legal issues that arise in the appointment of deputy ministers, among others: first, there excessively the appointment of deputy ministers, so it seems not in line with the background and philosophy of the establishment of the State Ministry of Law. 

Second, when the President lifted the deputy minister did not specify a specific workload for each deputy minister that strongly suggests the inevitable as more political than raise civil servants (PNS) in a professional manner in domestic positions. 

Third, according to the explanation of Article 10 Law on the State Ministry vice minister of civil servants are career positions, but the appointment is not clear whether the position is a position of structural or functional position."

Fourth, it is still associated with a career position, if a deputy minister will be appointed in his career with the structural position (Echelon IA), the appointment shall be by selection, and assessment by the Assessment Team Final (TPA) which is chaired by the Vice President on the proposal of each agency concerned," said Court. 

Fifth, the Court, the feel of the politicization of the appointments of deputy ministers seems also to changes Presidential Regulation. 47 of 2009 on the Establishment and Organization of the Ministry of State for up to two times before (Presidential Decree Number 76 Year 2011, dated October 13, 2011) and after (Presidential Decree Number 77 Year 2011, dated October 18, 2011) the appointment of deputy ministers in October 2011 that the majority society is seen as an attempt to justify those who are not eligible to be appointed as deputy minister in order to meet these requirements. 

While the sixth, legal complications in the appointment of deputy ministers as applicable today, appears also related to the expiration of the term of office. Where, if the deputy minister was appointed political officials who assist the minister ended his tenure with the office of President who appointed period. However, if the deputy minister was appointed as the official bureaucracy in his career then attached to hold the post until his retirement arrives or ends his tour of duty under the provisions applicable to a career position that does not necessarily end with the lifting presidential term.

"The question is, at the end of the tenure of deputy ministers is based on the fact that current law? Do the same with the expiration of a term that helped Ministers and the President who appointed period or may expire before or after it? Herein lies the legality of these complications, "said Court. In his press conference, Adi Warman stated that they accept and respect the decision of the Court. Consequently, according to him, the presence of the deputy ministers is appointed by presidential decree is based on the provisions of the annulled by the Constitutional Court was unconstitutional. "Until there is a new decree," he said. (Dodi / mh/Yazid.tr)

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