Dwi Maryoso as Principal Petitioner attending the preliminary hearing of the case on the State Civil Apparatus Law (ASN Law), Tuesday (19/12) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) held the preliminary hearing of the judicial review of Article 92 paragraph (4) and Article 107 of Law No. 5/2014 on State Civil Apparatus (ASN Law) in the Courtroom of the Constitutional Court on Tuesday (19/12). The case No. 98/PUU-XV/2017 was filed by Dwi Maryoso and Feryando Agung Santoso, both civil servants (PNS). 

In their petition, Dwi, one of the Petitioners, claimed that the a quo articles harmed his constitutional rights, because they act as the basis for the issuance of the Government Regulation No. 70/2015 on Work Accident Insurance and Death Insurance for State Civil Apparatus Employees. According to Dwi, based on Government Regulation No. 70/2015 he as a civil servant is required to register a membership in work accident and death insurance, which is part of social security, by giving authority to PT Taspen (Persero) to manage work accident and death insurance. "With the law, a government regulation (PP) was issued then followed-up by PT Taspen not in accordance with the mandate of the constitution," Dwi explained. 

Article 92 paragraph (4) of the ASN Law reads, "Further provisions on the protection as referred to in paragraph (1) shall be regulated in a Government Regulation." Meanwhile, Article 107 of the ASN Law reads, "Further provisions regarding the management of contract government employees (PPPK) as referred to in Articles 95 to 106 is stipulated in a Government Regulation." 

Dwi added, article 23A of the 1945 Constitution which reads, "All taxes and other levies for the needs of the state of a compulsory nature shall be regulated by law," while Decision of the Constitutional Court No. 138/PUU-XII/2014 mentions, “any system chosen by the state in the development the social security shall be deemed constitutional,” and also reinforced by Decision No. 101/PUU-XIV/2016 that reads, “social insurance contributions are equated with taxes." Therefore, the management of social insurance must be done in a non-profit by a public legal entity, namely BPJS Employment," Dwi said.

Therefore, the Petitioners through their petitum request that the phrase "stipulated in a Government Regulation" in the a quo article be declared contradictory to the 1945 Constitution as long as it is not interpreted "Health insurance for State Civil Apparatus must be managed by BPJS Kesehatan. Work Accident Insurance and Death Insurance for State Civil Apparatus Employees must be managed by Employment BPJS. " 

Justices’ Advice

Responding to the petition, Justice Saldi Isra provided a note for revision. According to him, the articles petitioned are deemed to have no substance except for the continuation regulated in Government Regulation No. 70/2015. "So, it’s not that the articles are problematic, but the government regulation (PP). So, you must be careful of the consequences of this petition because if the problem is the PP, it should be petitioned at the Supreme Court," explained Justice Saldi who chaired the hearing, accompanied by Constitutional Justices Aswanto and Manahan M.P. Sitompul. 

Constitutional Justice Aswanto similarly observed that the Petitioners needed to re-elaborate the constitutional impairment they suffered due to the enactment of the norms being reviewed so as to be more easily understood. Constitutional Court Manahan observed that the Petitioners claim that PP No. 70/2015, which is an organic regulation on the ASN Law, was not implemented. However, Justice Manahan did not find the description in the petition. Instead, he found that Law No. 40/2004 on the National Social Security System (SJSN Law) may be observed by the Petitioners as the root cause through its relationship with their constitutional rights. "Maybe here in Law No. 40/2004 you can find the problem. Perhaps the Law No. 40/2004 is problematic. So look again," Justice Manahan advised. 

At the end of the trial, Justice Saldi stated that the Petitioners had 14 days until Tuesday, January 2, 2018 at 10.00 a.m. to correct the revision and submit it to the Court Clerk. (Sri Pujianti/LA/Yuniar Widiastuti)