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Plenary ruling hearing of the judicial review of the Law on Higher Education, Thursday (14/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court could not grant the judicial review Law No. 20/2003 on the National Education System and Law No. 12/2012 on Higher Education. The Decisions No. 45/PUU-XVI/2018 and 47/PUU-XVI/2018 were read by Chief Justice Anwar Usman in the presence of the other eight constitutional justices on Thursday afternoon (14/2/2019).

Chairman of the Indonesian Procurement Lawyers’ Association (APPI) Sabela Gayo had requested that professional education be the absolute authority of professional associations. In petition No. 45/PUU-XVI/2018, he had requested the judicial review of Article 15; Article 20 paragraph (3); Article 21 paragraphs (1), (2), (3), (4), (5), and (6); Article 25 paragraph (1); Article 67 paragraph (1); and Article 68 paragraphs (1) and (2) of the National Education System Law. Meanwhile, in case No. 47/PUU-XVI/2018 he had requested several articles in the Higher Education Law. He had argued that the provision on professional education as regulated in the National Education System Law and the Higher Education Law had limited the space for APPI. That is because the a quo articles have deprived APPI of its constitutional rights to develop itself through education and training programs of procurement lawyers in order to improve the quality of life of its members.

In the legal considerations read out by Constitutional Justice I Dewa Gede Palguna, the Petitioner is not clear in arguing for the loss of his constitutional rights. On the one hand, he emphasized his qualifications as APPI Chairman while, on the other hand, there were also arguments emphasizing his status as an individual Indonesian citizen who worked as advocates. Justice Palguna stated that the affirmation was important because in the main point of his petition, the Petitioner apparently emphasized on the description of what he argued was a loss of APPI\'s constitutional rights. However, he in the initial part of his petition, the Petitioner also explained his qualification as an individual Indonesian citizen who worked as an advocate.

“This has made the Petitioner’s elaboration in explaining his legal standing obscure, that the Court is of the opinion that the Petitioner does not have legal standing to file the a quo petition,” Justice Palguna said.

Even so, in the legal considerations, the Court stated it had continued to examine the subject of the Petitioner\'s petition. On the criminal provisions in Article 67 paragraph (1), Article 68 paragraph (1), and Article 68 paragraph (2) of the National Education System Law considered detrimental to the Petitioner\'s constitutional rights, the Court was of the opinion that the norms of the National Education System Law stipulated criminal provisions for violators of certain provisions in the National Education System Law. In other words, Justice Palguna added, the inclusion of these criminal provisions was to guarantee compliance with certain norms in the National Education System Law, against which violations were punishable with the criminal sanctions mentioned in the law.

Justice Palguna also said that the inclusion of criminal sanctions was important to maintain the authority of certain fields and professions. In addition, it is important for protecting the public from becoming victims of unauthorized education providers that at some point actually brought about unqualified people who were more concerned about titles.

"Moreover, [society] tends to be easily deceived by the use of improper titles. Therefore, to protect the public, the Government should regulate the inclusion and use of titles that do not meet statutory provisions," Justice Palguna explained.

On the argument that Article 15 of the National Education System Law that reads, “The types of education include general, vocational, academic, professional, vocational and technical, religious, and special education,” the Court deemed it not touching on authority, but only on types of education. “How would it be possible that a norm of the law that does not regulate authority be said violating someone or a party’s constitutional rights? Therefore, the a quo argument of the Petitioner is not at all relevant and incoherent and thus had no legal grounds,” Justice Palguna said.

Meanwhile, on the judicial review of Article 20 paragraph (3) of the National Education System Law that reads, “Higher education institutions can run academic, professional, and/or vocational and technical programs,” the Court did not find an argument on the conflict between the National Education System Law and the 1945 Constitution. As educational institutions, Justice Palguna added, it would in fact be odd if higher education institutions did not have the authority to provide professional education, let alone be considered contradictory to the 1945 Constitution.

“There is no relation between the authority of higher education institutions to provide professional education and the Petitioner’s activity to run Procurement Lawyers Special Training (PKPP) and Procurement Law Education (PAHKP). The a quo norm did not hinder the Petitioner from doing the activity as long as it is a legal activity under positive laws that apply in Indonesia. Therefore, the a quo argument of the Petitioner has no legal ground,” he asserted. (Lulu Anjarsari/Yuniar Widiastuti)

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