Dian Puji Nugraha Simatupang, M. Sholehuddin, and Taufiqurrohman as experts for Petitioners of cases 87-88/PUU-XVI/2018 of the judicial review of the State Civil Apparatus (ASN) Law, Tuesday (8/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provision on State Civil Apparatus dismissal as stipulated in Article 87 paragraph (2) of Law No. 5/2014 on the State Civil Apparatus (ASN Law) has cause legal uncertainty due to the choices of sanction on ASN who commit crimes. This was conveyed by Dian Puji Nugraha Simatupang, who was presented by Petitioners of cases 87/PUU-XVI/2018 and 88/PUU-XI/2018 in the judicial review of the ASN Law on Tuesday (8/1/2019).

The University of Indonesia Faculty of Law lecturer said the norm provided choices that led to uncertainty regarding standards, terms, criteria, and procedures in determining sanctions. "This choice has created complexity of state administration regarding the basis of the law and the basis of facts in deciding [whether an ASN] be dismissed or not, which in turn will create legal uncertainty in its implementation, so it will not be [effortless] in implementation on every state civil apparatus," he explained before the panel of justices led by Chief Justice of the Constitutional Court, Anwar Usman.

According to Dian, a regulation regarding sanctions needs to distinguish between the forms of violations, be it administration or criminal. "The differentiation is clearer than the normalization of \'criminal offense with minimum sentence of two years imprisonment\' and \'unpremeditated criminal offense\' by the legislators that might be aimed at general criminal offenses," he explained.

Dian also suggested that sanctions in the provisions of Article 87 paragraph (2) of the ASN Law be adjusted to those listed in Articles 80 and 83 of Law Number 30 of 2014 on Government Administration. This is to ensure legal certainty and legal protection and the rights of ASNs who have good intentions in carrying out their main duties, functions, and authorities. "It should be adjusted according to the provisions of Article 80 to Article 83 (Government Administration Law). Thus, there is harmonization, synchronization, and good integration in imposing sanctions on state civil apparatus, and paying attention to general principles of good governance," he advised.

Lacking Legal Standing

The House of Representatives, represented by Commission III member Arteria Dahlan, stated that the Petitioners had no legal standing. The House was of the opinion that the Petitioner did not postulate specific, actual, and potential loss of rights or constitutional authority. He also denied the Petitioners\' view regarding the provision being discriminatory. Arteria said that the articles reviewed apply not only to the Petitioners, but to ASN throughout Indonesia. The provision also contains distinctions based on religion, ethnicity, race, group, class, social status, economic status, gender, language, and political belief.

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)