Petitioner, Chairperson of FPP BNI Martinus Nuroso, reading out principal points of the petition at the preliminary hearing of the judicial review of the Manpower Law, Wednesday (19/9) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Forum for Pensioners of Bank Negara Indonesia (FPP BNI) filed a petition to the Constitutional Court (MK) on the application of the Constitutional Court Decision No. 100/PUU-X/2012 that invalidated Article 96 of Law No. 13/2003 on Manpower. FPP BNI chairman Martinus Nuroso was recorded by the Registrar\'s Office of the Constitutional Court as Petitioner of case No. 75/PUU-XVI/2018.

In the petition, the Petitioner argued that the interpretation of the non-retroactive Constitutional Court Decision No. 100/PUU-X/2012 was one-sided, causing the impairment of the constitutional rights of FPP BNI members due to lack of legal certainty. The lack of legal certainty arose from the failure of BNI bank to fully pay the rights of the Petitioner even after the expiry period had passed, even though the right had arisen before the Constitutional Court Decision No. 100/PUU-X/2012 dated September 19, 2013. The right was deemed no longer liable, thus causing significant material losses to the Petitioner.

"I was informed of the Minister of Manpower Circular Letter No. 1/MEN/1/2015 dated January 17, 2015 as a response to the Constitutional Court Decision No. 100/PUU-X/2012, basically saying that the letter holds that because the Constitutional Court\'s decision is not retroactive, the circular letter point 3 explains that the rights arising before September 17, 2011 cannot be claimed. So, because Article 96 (Manpower Law) was delayed for 2 years, the rights arose 2 years since the emergence of the rights, so [from] September 17, 2013, it was rolled two years back to September 17, 2011," Martinus explained in the session led by Constitutional Justice Enny Nurbaningsih.

Therefore, in the provisional petitum, the Petitioner requested that the Constitutional Court prioritize the examination and ruling on the petition by giving the correct interpretation of the moment the Constitutional Court Decision No. 100/PUU-X/2012 went into effect on September 19, 2013, annulling Article 96 of Law No.13/2003 on Manpower, considering that it has caused constitutional harm and, in turn, can cause material losses for the Petitioner. In addition, the Petitioner requested clarity of the enactment date of the Constitutional Court Decision No. 100/PUU-X/2012 on September 19, 2013 which annulled Article 96 of Law No.13/2003 on Manpower.

Constitutional Court’s Authority

In response to the petition, Constitutional Justice I Dewa Gede Palguna explained that the Constitutional Court was limited by the authority granted by the 1945 Constitution. He requested that the Petitioner understand the authority because, according to him, the petition did not request a judicial review of the norm, but rather an interpretation of the Constitutional Court Decision. This, he added, is not the authority of the Constitutional Court. "The authority of the Constitutional Court is conducting judicial review of the norms of the law, [which is] not what you requested in this petition. So, we are not authorized [to do it]," he said.

Justice Palguna also noted that the petition was related to the application of the norm, not its constitutionality. Meanwhile, in relation to losses suffered, he suggested that the Petitioner [file it with] another court because the Constitutional Court was not authorized [to examine it].

"So, the problem arises when the legal norms that have been tested by the Constitutional Court are enforced in concrete matters. Unfortunately, we do not have the authority to decide on such matters. That is the authority of another institution, another court," he explained.

Meanwhile, Constitutional Justice Saldi Isra said that the Constitutional Court could not re-examine an article of the law that had been decided. He stressed that the Constitutional Court\'s decision was final and binding. "It is impossible for us to re-examine the article that has been declared unconstitutional. If we were forced to continue, and we re-examined the Constitutional Court Decision No. 100/PUU-X/2012 and it is not the authority of the Constitutional Court, there will be more review, so the Constitutional Court\'s decision is final and binding," he said. (Lulu Anjarsari/Yuniar Widiastuti)