Government expert Tri Hayati delivering her expertise in the judicial review hearing of the State Civil Apparatus (ASN) Law, Tuesday (12/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA—The provision on penalty for the State Civil Apparatus (ASN) as stipulated in Article 87 paragraph (2) and paragraph (4) letters b and d of Law No. 5/2014 on the State Civil Apparatus (ASN Law) offers legal certainty and protection for all ASN officials who perform their duties following existing regulations. In addition, the provision also guarantees equal treatment and opportunity for all ASN officials who comply with existing regulations. This was conveyed by Government expert Tri Hayati in the judicial review hearing of the State Civil Apparatus (ASN) Law for cases No. Nomor 87/PUU-XVI/2018, 88/PUU-XVI/2018, and 91/PUU-XVI/2018 held by the Constitutional Court in the Plenary Courtroom on Tuesday (12/2/2019).

“This is the justice aspect of the regulation of Article 87 of the ASN Law. Sanctions as stipulated in Article 87 are in line with the theory of corrective justice,” said the University of Indonesia Law Faculty lecturer in the hearing presided over by Chief Justice Anwar Usman.

Tri Hayati did not agree with imposing double administrative sanctions on ASNs who violated the article being reviewed because administrative sanctions and criminal sanctions are one. According to her, the articles reviewed by the Petitioners constitute the administrative sanction given after a criminal sanction ruling, which has permanent legal force, by the court.

“So there will be no double sanctions, but [both] criminal and administrative sanctions go together as one. What is forbidden is of course nebis in idem, if one and the same case is tried twice and there is no prohibition against imposing combined criminal and administrative sanctions or other civil sanctions such as fines,” she explained.

In addition, Tri Hayati explained that Article 87 paragraph (2) of the ASN law that giving the Personnel Supervisor Officer (PPK) the discretion to or not dismiss civil servants was not a problem because the discretion would be in accordance with the existing regulations. “The discretion must be in accordance with Articles 24 through 29 of Law Number 30 of 2014 on State Administration,” she elaborated.

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)