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Panel hearing of the judicial review of the ASN Law, Thursday (25/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

Several civil servants (PNS) submitted two petitions for the judicial review of Law No. 5/2014 on the State Civil Apparatus (ASN Law) on Thursday (25/10). The case registered as No. 87/PUU-XVI/2018 was submitted by Hendrik. Five Petitioners, Fatah Yasin, Panca Setiadi, Nawawi, Nurlaila, and Djoko Budiono, filed for case No. 88/PUU-XVI/2018.

In the preliminary hearing, Petitioner No. 87/PUU-XVI/2018 argued that he was disadvantaged by the enactment of Article 87 paragraph (2) and Article 87 paragraph (4) of the ASN Law, which regulates the dismissal of ASN. Meanwhile, on case No. 88/PUU-XVI/2018, the Petitioners only submitted a petition for the judicial review of Article 87 paragraph (4) letter b of the a quo law. 

Hendrik, who was present at the hearing, explained that the Petitioner was dismissed from his position based on the Bintan Regent Decree No. 26/I/2010 dated January 15, 2010. The Petitioner was temporarily dismissed from his public office based on the Bintan Regent Decision No. 130/III/2011 dated March 4, 2011. He was reactivated as a civil servant who had been temporarily dismissed from a public office based on the Bintan Regent Decree No. 328/VI/2012, April 17, 2012. Then, the Petitioner was demoted for three years based on the Bintan Regent Decree No. 329/VI/2012 dated December June, 12, 2012.

"The Petitioner has served a prison sentence and been released from the Tanjung Pinang Penitentiary, so he returned to being a citizen with all inherent human rights as guaranteed in the 1945 Constitution and in line with the spirit contained in Law Number 12 of 1995 on Correctional Facilities," he explained before the panel of justices led by Chief Justice of the Constitutional Court Anwar Usman.

In addition, the Petitioner also argued that the word "may" in Article 87 paragraph (2) of the ASN Law could lead to the subjective implementation of norms. Furthermore, according to him, the phrase "having committed a criminal offense with a minimum sentence of 2 (two) years imprisonment and a premeditated criminal offense" in Article 87 paragraph (4) letter d does not specify any criminal acts. The Petitioner considered it to cause uncertainty in the implementation of the a quo norm. The Petitioner concluded that all norms that he petitioned basically were contrary to "Principle of Implementation," "Principle of Clarity of Formulation," "Principle of Justice," "Principle of Equality in Law and Government," and "Principle of Certainty and Legal Certainty."

Meanwhile, Muhammad Sholeh as attorney for Petitioners No. 88/PUU-XVI/2018, civil servants who had been sentenced for corruption between 1 year and 1.5 year, conveyed that the Petitioners were concerned by the Joint Decree of 3 Ministers (Minister of Home Affairs, Minister of State Apparatus Empowerment and Bureaucratic Reform, and Head of the National Civil Service Agency) on September 13 on Enforcement of Law on Civil Servants who were sentenced based on court decisions that have permanent legal force for committing crime in public office or crime in official capacity.

"Therefore, the Petitioner has the constitutional right to review Article 87 paragraph (4) letter b of Law Number 5 of 2014. According to news in the media, about 2,674 civil servants will be dismissed, including the Petitioner," Sholeh explained.

Then, Sholeh also explained that Article 87 paragraph (4) letter b of the ASN Law contains legal uncertainty, prevents the Petitioner from being active and obtains equal opportunities in the Government. Therefore, the Petitioner requested that the two a quo articles be declared contrary to the 1945 Constitution.

Court Advice

Responding to the petition, the panel of justices, including Constitutional Justices I Dewa Gede Palguna and Wahiddudin Adams, gave suggestions for improvement. Justice Palguna suggested that the Petitioner improve his legal standing. According to him, the legal standing in the petition was unclear, so the constitutional loss was not obvious.

"In requesting the judicial review, you must explain in the legal standing, why for example in this case as an Indonesian citizen, there are constitutional rights that are harmed by the enactment [of the norm]? The concrete case of course may be explained, but the narrative must contain the description as referred to in the decisions of the Constitutional Court. First, what are your constitutional rights that were specifically violated first or do you think you have been harmed by the enactment of the law?" Justice Palguna suggested.

After describing the legal standing, Justice Palguna added, the Petitioner was to describe the constitutional losses he had experienced. He believed the Petitioner\'s petition only explained the factual case, but did not elaborate on the constitutional loss due to the enactment of the article being reviewed.

"Your assumption is that to test your logic, the last requirement will appear. That if this petition is granted, the constitutional impairment will not or will no longer occur. That must be expressly described or clearly described in the legal standing. If it is not clear, we will not examine the subject matter of the petition, because [the legal standing] is the pathway," he said.

The panel of justices gaves 14 working days to the Petitioners to revise the petitions. Justice Anwar explained that the petition revision should be submitted no later than Wednesday, November 7, 2018 at 10.00 a.m. (Lulu Anjarsari/Yuniar Widiastuti)

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