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Term of office of members of Supreme Audit Board (BPK) replacement only continued tenure replaced declared contrary by Constitutional Court (MK) on Tuesday (10/9) at Plenary Court. The decision to No. 13/PUU-Xi/2013 read by Chief Justice M. Akil Mochtar, accompanied by eight other constitutional judges. The petition filed by Bahrullah Akbar, a Supreme Audit Board substitute member with tenure of less than three (3) year term of office while other are not a substitute for a different set with a term of five years. 

"To grant the petition in its entirety. Declare Article 22 paragraph (1) of Act 15/2006 on all phrase "intertemporal substitution" contrary to the 1945 Constitution and have no binding legal force. Declare Article 22 paragraph (4) and Article 22 paragraph (5) contrary to the 1945 Constitution and have no binding legal force," said Akil read the petition filed by Bahrullah Akbar. 

In the opinion of the Court was read by the Deputy Chief Justice Hamdan Zoelva constitutionality issue Petitioner petitioned substance has similarities with the constitutionality of tenure of the Chairman Corruption Eradication Commission (KPK) replacement has been decided by the Court in its Decision No. 5/PUU-IX/2011, dated June 20, 2011 and the term of office of Constitutional Court has decided that a replacement in Decision No. 49/PUU-IX/2011 Court, dated October 18, 2011. 

"Both the ruling confirms, norms Act which provides that a term of the Constitutional Court continued replacement only remaining term that replaces the Constitutional Court and the term of office of members of KPK replacement just continue the rest of the term of office of his predecessor KPK is the norm as opposed with the constitution," said Hamdan. 

According to the Court, as well as with BPK, as an independent state agency established by constitution, should have the constitutional guarantee of duty and authority effectively, independently and continuously. BPK members, continued Hamdan, should not stop at the same point in time, because it did not ensure the effectiveness and sustainability of the duties and authority of BPK as well. 

"Thus, if a member who quit his post before the end period of 5 (five) years should be replaced by BPK members who occupied the position for the past 5 (five) years as well, and not only continue the tenure of his predecessor," he explained. 

In addition, Hamdan explained that neither the terms nor the mechanism of filling the positions of members is equal and there is no difference. In Article 22 paragraph (1), BPK Members replacement candidate must meet the requirements specified in Article 13 and Article 14 of BPK Act. Elected substitute member who just went on the rest of the term of the member being replaced are treated differently by the members elected at the same time at the beginning of the period that runs full term, whereas replacement members undergoing any selection process and the same conditions, thus violating the principle of equal treatment of all citizens before the law and government. 

"Based on the foregoing considerations, the Court in accordance with the provisions of Article 22 paragraph (1) of BPK throughout the phrase "intertemporal substitution", should be declared contrary to the 1945 Constitution," he said. 

However, Hamdan said although Article 47 of Constitutional Court Act ruling set the force on the set (prospective), but for the sake of expediency principle which is the law of universal principles and purposes of the particular cases to the Court’s decision may be enforced retroactively (retroactively) as set forth in the Decision Court Number 110-111-112-113/PUU-VII/2009, dated August 7, 2009 on which the determination of the members of Parliament in the period 2009-2014. The underlying reason for the special retroactive determination, among others, is the "have" and "hold" the course of the implementation of the Act based on the contents of an improper interpretation giving rise to legal uncertainty and constitutional rights and should therefore be discontinued. Termination of uncertainty and loss of constitutional law, it is clear Hamdan, should reach retroactively since the enactment of the incorrect interpretation, which began to arise when uncertainty and loss of constitutional law as seen in the case. 

"Therefore, in order to avoid legal uncertainty as a result of this ruling, related to the replacement, then this ruling applies to BPK members who have appointed a replacement and now occupy positions as BPK members, so that the right to occupy the full term, which is 5 (five) years after opening his appointment as a Member of BPK with President’s decision," he said. (Lulu Anjarsari / mh)

 

 

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