Expert presented by Applicant H. Sanusi Afandi, SH, MH was delivering his expertise at judicial review session on Act of Hajj Financial Management on Tuesday (24/03) at Plenary Room, the Constitutional Court Building (Gedung Mahkamah Konstitusi). Photo PR/Ganie
The Constitutional Court (Mahkamah Konstitusi –MK) was held judicial review further hearing on Act No. 13 Year 2008 of Hajj Pilgrimage Coordination (Penyelenggaraan Ibadah Haji) and Act No. 34 Year 2014 of Hajj Financial Management (Pengelolaan Keuangan Haji) filed by two Hajj applicants, Sumilatun and JN Raisal Haq. Expert’s and Witnesses’ testimony hearing was conducted on the session which case registered on No. 12 and 13/PUU-XIII/2015.
Professor of Islamic Education Faculty of Jember The Islamic University (Sekolah Tinggi Agama Islam Negeri Jember) Abdul Halim Soebahar as an Expert stated assertiveness and legal certainty needed that Muslims who had never went Hajj should be prioritized. “Whereas those who have been conduct Hajj shall be declared ineligible anymore, unless they meet one of the requirements,” said him at the session led by Deputy Chief Anwar Usman at Plenary Room, the Constitutional Court Building (Gedung Mahkamah Konstitusi) on Tuesday (24/03)
According to him, Muslim citizens who had been Hajj were allowed to Hajj if they met one of three requirements, which were performed duty related with Hajj Pilgrimage coordination, for example as committees or officials; particular reason justified by legislation; or there were none waiting-list Hajj applicants. He explained, when one of the three reasons were not met, constitutional loss will occurred related with many waiting-list applicants
Furthermore, the expert who was also Jember’s Indonesian Ulema Council chief (Ketua Majelis Ulama Indonesia Jember) stated Article 5 Act of Hajj Pilgrimage Coordination should be declared conditional constitutional, as long as phrase ‘pay Hajj pilgrimage travel payment (Biaya Penyelenggaraan Ibadah Haji –BPIH)’ interpreted as paid BPIH in current year after the Applicant granted Hajj slot. “In other words, the Applicant doesn’t have to pay initial deposit during they registered as Hajj applicants,” said him.
He added, there was a basis on Quran in which Allah spoken “Walillahi alannasiHijjul baiti manistatho\'a ilaihi sabila”. It means, istitoah or capability is part of Hajj requirements indicator. But, limited slots and queue up for decades would made a person’s turn to conduct hajj became incapable because it possibly health condition, mental condition, or financial condition were no longer met.
BPIH is Burdensome
As for judicial review on Act of Hajj Financial Management, related to Article 6 (1), (2), and (3). Towards paragraph (1), the expert stated the enactment of Article 6 paragraph (4) and (5) had detrimental to the Applicant’s constitutional rights that noted on Article 28D (1), Article 28G (1), and Article 28H (4) the 1945 Constitution, which were equal legal certainty rights and assets protection rights. According to the expert, those norms should be interpreted ‘shall not be taken over by Hajj applicant is BPIH deposit balance in current year’. While BPIH initial deposit funds should be interpreted ‘can be taken by Hajj pilgrim applicants because BPIH initial deposit fund is Hajj applicant’s private assets, they has rights to take the funds from BPS BPIH’.
Meanwhile, the witnesses presented by Applicant Ali Masyar confessed he had detrimental with the enactment of norms reviewed on Act of Hajj Pilgrimage Coordination and Act of Hajj Financial Management. Ali who was PNS teacher stated that he willing to apply Hajj, but he had no funds to pay BPIH initial deposit as much as Rp25.000.000. “Honestly, we strongly objected with such enormous deposit,” said them. .
Moreover, the witnesses objected with queue waiting that could reach 20 years later. They explained that they could register Hajj after they retired, by paying initial funds using retirement insurance saving (Tabungan Asuransi Pensiun –Taspen) funds. “Whereas for civil servant (Pegawai Negeri Sipil –PNS) teachers, Taspen fund disbursed after retirement, when I already 60 years,” added Ali.
When registered at 60, Ali should wait 20 until 30 years later; means that he could went Hajj at 85 until 90 years old. “I objected if I obliged to pay BPIH initial deposit, because I shall prioritize my children education and several living needs that are more productive than for paying the deposit,” explained him.
Previously, the Applicant reviewed Article 4 (1), Article 5, Article 23 (2), and Article 30 (1) Act No.13 Year 2008 of Hajj Pilgrimage Coordination and several articles on Act No. 34 Year 2014 of Hajj Financial Management. As for Article 4 (1) Act of Hajj Pilgrimage Coordination stated:
“Every Muslim citizen has rights to conduct Hajj Pilgrimage on terms: a. aged minimum 18 (eighteen) years or had married; and b. able to pay the Hajj pilgrimage travel payment (Biaya Penyelenggaraan Ibadah Haji –BPIH)”
(“Setiap Warga Negara yang beragama Islam berhak untuk menunaikan Ibadah Haji dengan syarat: a. berusia paling rendah 18 (delapan belas) tahun atau sudah menikah; dan b. mampu membayar BPIH”)
According to the Applicant, those regulations considered conditional unconstitutional because it stated that every Muslim citizen could apply for Hajj Pilgrimage more than once. Whereas, recent Hajj problem is limited slots issue. “Hajj applicants obliged to pay initial deposit or whatever it called, whereas Hajj slot they granted is still 20 until 25 years later,” said the Applicant on judicial review first session on case no 12 and 13/PUU-XIII/2015 at Session Room, MK on Tuesday (27/1) Jakarta.
He considered, the provisions on Article 4 (1) on the Act a quo must be interpreted specifically for Muslims who never been Hajj, that allowed to get Hajj slot, while for Muslim who once been Hajj, they should not allowed if there were still waiting-list pilgrims. "Why is that so? Because in Islam, the obligation of Hajj Pilgrimage is only once, al hajju maratun fama zaadaz fahuwa tathawwu, Hajj is only obliged once, the rest is sunna," he added.
Moreover, the Applicant also issues the initial deposit of Hajj pilgrimage travel payment (Biaya Penyelenggaraan Ibadah Haji –BPIH) applied during the pilgrim applicants register Hajj, as regulated on Article 5 Act of Hajj Pilgrimage Coordination. The Applicant assesses the definition of ‘paying BPIH’ should be interpreted as BPIH at current year, as other articles noted that the pilgrim applicants shall pay BPIH after obtain the approval from the President and the House of Representatives (Dewan Perwakilan Rakyat –DPR) and appropriate with determined slots.
“It means, we considered that payment obliged is BPIH on current year, rather than initial deposit. BPIH initial deposit is not compelled and voluntary. Registration process is not related with BPIH initial deposit because basically registering on waiting-list is similar with taking queue number,” explained him. (Lulu Hanifah/Prasetyo Adi N.)
Tuesday, March 24, 2015 | 16:13 WIB 411