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Legal counsel of the Petitioner Muhammad Junaidi (middle) reading the subjects of the petition in the preliminary judicial review hearing of Article 58 paragraph (1) of Law No. 5 of 2014 on State Civil Apparatus, Tuesday (22/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held the preliminary judicial review hearing of Article 58 paragraph (1) of Law No. 5 of 2014 on State Civil Apparatus (ASN Law), Tuesday (22/1/2019). Nurse Ahmad Ihsan petitioned the procurement of civil servants (PNS) that he claimed to only be based on the required competencies. Article 58 paragraph (1) of the ASN Law reads, “Procurement of civil servants is an effort to fulfill the need for administrative and/or functional positions within a government institution.”

Muhammad Junaidi as legal counsel for the Petitioner explained the Health Workforce Development plan for 2011-2025 by the Ministry of Health, which the Petitioners assessed as contradictory if the procurement of ASN positions was based on the competencies required. According to the Petitioner, recruitment must take several things into account. "The types of health services needed by the community, the number of healthcare facilities, the number of health workers in accordance with the existing workload of health services in accordance with Article 26 paragraph (3) of Law Number 36 of 2009 on Health," he said in Case No. 6/PUU-XVII/2019.

Junaidi also explained that emphasizing on the aspect of needs, [the procurement] only accommodates the principle of formal justice. However, it pushes aside substantial justice and even social justice.

"This can lead to a perspective that does not carefully observe that the procurement of civil servants also considers the competencies [applicants] have and the workload as a consideration for the procurement of civil servants," he added.

Provisions in the ASN Law, said Junaidi, can lead to discrimination of rights, including rights not granted to contract-based teachers, nurses, and other professions that have committed themselves in the profession to become ASN. The Government without considering justice for the community only prioritizes legal certainty in fulfilling the demand of ASN.

"The provision in the a quo article conflicts with Article 61 of the ASN Law that states that every citizen has the same opportunity to apply to become a civil servant after fulfilling the requirements. So, the meaning of the a quo article indirectly gives rise to discrimination for every citizen in becoming a civil servant," he said in a session chaired by Constitutional Justice Saldi Isra.

Legal Standing

Constitutional Justice Manahan M.P. Sitompul observed the legal standing of the Petitioner that required the constitutional impairment experienced by the Petitioner be seen. "This must be explained in more details, what norms are violated [by] the article," he explained.

On the other hand, he also criticized the substance, which heavily cited the considerations of the law. For him, this is unnecessary because it is irrelevant. Instead, the constitutional loss should be addressed more deeply. Similarly, according to him, the citation of Government Regulation (PP) and Presidential Decree in the petition is not needed, as it instead shows the petition as a concrete case.

Meanwhile in terms of the petitum, Justice Manahan said, if the article reviewed was canceled, there would be a big problem because the article became the root of the provision in the law. If the Constitutional Court cancels the enactment of the article, it will cause damage to the structure of the law. (Arif Satriantoro/LA/Yuniar Widiastuti)

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