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Burhan Manurung as Principal Petitioner at the ruling hearing of judicial review case of State Treasury Law, Thursday (28/9) at the Plenary Hall of the Constitutional Court building. Photo by PR/Ganie.

The provisions of statute of limitation for the state debt burden as regulated in Article 40 paragraph (1) of Law No. 1/2004 on the State Treasury does not apply to pension and old age benefits. Thus the Constitutional Court Decision No. 15/PUU-XV/2016 read by Chief Justice of the Constitutional Court Arief Hidayat in the presence of the eight other Constitutional Justices on Thursday (28/9).

"… Grant the Petitioner\'s petition in part. Declare that Article 40 Paragraph (1) of Law No. 1/2004 on the State Treasury contrary to the 1945 Constitution of the State of the Republic of Indonesia and having no binding legal force as long as it is applied to pension and retirement insurance,” Arief said reading the decision.

Burhan Manurung, a Retired State Civil Apparatus/Civil Servants (ASN/PNS) of the Ministry of Trade, claimed that his constitutional rights were violated by the enactment of Article 40 paragraph (1) of the State Treasury Law. The article reads "The right to collect the state/regional debt burden shall be expired after five (5) years from the mature of the debt, except stipulated otherwise by the law.” The Petitioner claimed that the a quo article resulted in the Petitioner and his family being unable to receive full pension from PT Taspen.

In the opinion of the Court read by Constitutional Court Justice Wahiduddin Adams, the pension and old age benefits are actually not state debts, but rights that must be guaranteed by the state. In accordance with ASN Law, Justice Wahiduddin continued, the state must seriously pay attention and implement sustainable protection mandate as referred to in Article 91 paragraph (3) of ASN Law. As to what is meant by sustainable protection is those who have the right to pension and old age benefits should get time reduction in receiving pension and old age benefits. Moreover, he added, Article 91 paragraph (3) of the ASN Law expressly states that they are not merely right, but reward from the state for the dedication of the ASN concerned.

"Therefore, on pension and old age benefits, no provisions on expiry shall be applied, as stipulated in Article 40 paragraph (1) of the State Treasury Law," Justice Wahiduddin explained.

Justice Wahiduddin continued the consideration that Article 40 paragraph (1) of the State Treasury Law must be related to Article 91 paragraph (3) of the ASN Law, therefore it is imperative to guarantee the fulfillment of the right to recognition, guarantee, and fair legal protection as intended by Article 28D paragraph (1) of the 1945 Constitution. If Article 40 paragraph (1) of the State Treasury Law is not related to Article 91 paragraph (3) of the ASN Law, there will be inter-law disharmony, which leads to legal uncertainty.

"Because, on the one hand, pension and old-age benefits are expressly stated by Article 91 paragraph (3) of the ASN Law as a right whose sustainability must be guaranteed. On the other hand, by Article 40 paragraph (1) of the State Treasury Law it can be regarded as debts of the state whose collateral rights are subject to expiry date," Justice Wahiduddin added.

Active Role of Institutions

Furthermore, the Court also needs to consider that the right to pension and old age benefits arise because, among others, the ASN/PNS has reached pension age limit . This is proven administratively through the pension decree and the certificate of termination of salary (SKPP) issued by the relevant ministry/agency and authorized by the local treasury office (KPPN). In pension payments, as conveyed by the President’s representative in his statement before the Court, because they were categorized as a state debt, expiry date shall be applied as stipulated in Article 40 paragraph (1) of the State Treasury Law. The problem, Justice Wahiduddin continued, was if there was a delay in issuing SKPP that the 5 (five) year period as referred to in Article 40 paragraph (1) of the State Treasury Law was passed, making pension—which is work debt—expired that the pension recipient was only paid the maximum pension of 5 (five) years. According to the Court, such a matter became unfair when only charged to ASN/PNS.

"Because an active role of the institution where the ASN/PNS works is also required, especially in relation to the issuance of SKPP, which became the basis of pension and old age benefits by PT Taspen (Persero). Based on all the above legal considerations, the Court is of the opinion that the Petitioners\' arguments in the petition are legally justified in part," he said.

(Lulu Anjarsari/Yuniar Widiastuti)

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