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Maruarar Siahaan as expert for the Petitioners delivering his expertise in the judicial review hearing of the State Civil Apparatus (ASN) Law, Tuesday (29/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provision on sanctions for State Civil Apparatus (ASN) as stipulated in Article 87 paragraph (4) letters b and d and paragraph (2) of Law No. 5/2014 on the State Civil Apparatus (ASN Law) has caused legal uncertainty. That is because there is the option of sanction, which might encourage subjective assessment and lead to unfairness toward the ASN who committed a violation.

This was conveyed by Borobudur University Law Faculty lecturer Zudan Arif Fakrulloh in the judicial review hearing of ASN Law for cases No. 87/PUU-XVI/2018, 88/PUU-XVI/2018, and 91/PUU-XVI/2018 held by the Constitutional Court Tuesday (29/1/2019). Zudan argued that Article 87 paragraph (2) of the ASN Law allows too much discretion to commitment maker officials (PPK) to either dismiss or not to dismiss civil servants (PNS). This discretion, he said, would lead to legal uncertainty because each PPK could have subjective judgment on the civil servant. “The subjective [judgment] could occur because of [closeness or distance between the PPK and the civil servant]. Due to this subjective [judgment], this norm potentially brings about injustice,” he explained as expert for Petitioners No. 91/PUU-XVI/2018.

In addition, Zudan also claimed that there was reduction of meaning of Article 87 paragraph (4) letters b and d of the ASN Law, causing different interpretation and implementation. In the end, this will lead to legal uncertainty. “For example, A committed a general criminal offense of assault with a one-year sentence. The question is whether he must be dismissed from [his position as] a civil servant based on Article 87 paragraph (4) or not dismissed based on Article 87 paragraph (2) of the ASN Law,” said the former Acting Governor of Gorontalo.

In state administrative practices, Zudan added, many PPKs in the end chose not to dismiss a civil servant because it is socially more advantageous. The decision is made with the consideration that the civil servant in question subjectively has more value.

On the other hand, he added, this provision also contradicts the regulation under it, that is, the Government Regulation (PP) No. 11/2017. Article 23 paragraph (1) of PP No. 11/2017 contradicts the impugned articles. “Likewise, coherence between the norms cannot be realized if we observe the norm of Article 87 of the ASN Law and Articles 247 to 251 of the PP on the Management of Civil Servants,” he stressed in the hearing on Tuesday (29/1/2019) afternoon.

Judge Authority 

Meanwhile, Maruarar Siahaan argued that Article 87 paragraph (4) letters b and d and paragraph (2) of the ASN Law should have been under the purview of the judge and part of the judge’s ruling.

“Therefore, the a quo articles should be the responsibility of the public prosecutor to demand, in the petitum, whether to dismiss the person or not. So, aside from being convicted, he is punished by the public prosecutor, and [the judge requested that he be fired], of course with sufficient argument and the judge would consider the severity [of the crime]. Therefore, I think due process is very important, and I think even if Article 87 did not exist in the ASN Law, it would not be a problem because the contrarius actus principle grants the dismissal authority to the person who appointed [the civil servant],” he said.

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. 91/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 Petitioners requested that the two a quo article be declared contrary to the 1945 Constitution. (Arif Satriantoro/LA/Yuniar Widiastuti)

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