Expert Legal Staff of the Ministry of PAN RB Tin Zuraida representing the Government in the plenary judicial review hearing of the State Civil Apparatus (ASN) Law, Tuesday (11/12) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court held a third hearing of Article 87 paragraph (2) and paragraph (4) letters b and d of Law No. 5/2014 on the State Civil Apparatus (ASN Law), Tuesday (11/12). Expert Legal Staff of the Ministry of Administrative Reform and Bureaucratic Reform (PANRB) Tin Zuraida emphasized that the provision being reviewed provided legal certainty and was not discriminatory.

Zuraida stated that the provisions of Article 87 paragraph (2) and paragraph (4) letters b and d of the ASN Law provided guarantee of protection and fair legal certainty. Therefore, the ASN Law is in line with Article 28D paragraph (1) of the 1945 Constitution.

“On the other hand, the provisions stipulated in Article 87 paragraph (2) and paragraph (4) letters b and d guarantees freedom from discriminatory behavior. It is in line with Article 28D paragraph (1) of the 1945 Constitution,” she affirmed in the session presided over by Chief Justice of the Constitutional Court Anwar Usman.

Zurida said that the article being reviewed stipulated dishonorable discharge to civil servants (PNS) was handed down if the person in question had been proven to have committed a criminal offense of abuse of position and had received inkracht verdict. Civil servants, she added, at every criminal case examination stage were given the opportunity to prove their innocence. In addition, civil servants are given the opportunity to take legal measures such as appeal, cassation, and judicial review.

Zurida also said that Article 87 paragraph (2) and paragraph (4) letters b and d of the ASN Law provided all civil servants with equal opportunity without exception to make efforts to defend their rights. At every stage of criminal case examination, civil servants are not kept from filing a suit to the state administrative court (PTUN) on the decision of the Personnel Supervisor Officer (PPK) that has handed down their dishonorable discharge.

“Based on our explanation, it is clear that a civil servant who will be dismissed, either honorably or dishonorably, are given opportunity to defend themselves or provide evidence against the alleged offense,” she asserted.

Case No. 87/PUU-XVI/2018 was submitted by Hendrik, while five Petitioners—Fatah Yasin, Panca Setiadi, Nawawi, Nurlaila, and Djoko Budiono—filed for case No. 88/PUU-XVI/2018. The Petitioner of case 87 claimed to have been disadvantaged by the enactment of Article 87 paragraph (2) and Article 87 paragraph (4) of the ASN Law, which regulates the dismissal of ASN. The Petitioner, who had served a prison sentence, 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, Petitioners of case No. 88/PUU-XVI/2018 felt harmed by the enactment of Article 87 paragraph (4) letter b of the ASN Law, which they deemed containing legal uncertainty, prevents the Petitioners from being active and obtaining equal opportunities in the Government. Therefore, the Petitioner requested that the two a quo articles be declared contrary to the 1945 Constitution. (Arif Satriantoro/LA/Yuniar Widiastuti)