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House representative Sri Rahayu delivering House statement in the judicial review of the BPJS Law, Monday (27/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The concept of transfer of the social security program organized by PT Taspen is related to old age and pension benefits of civil servants at the BPJS Employment, from the mutual cooperation principle as regulated in Article 4 of the National Social Security System (SJSN) Law governing the principles of the implementation of the national social security system.

This was conveyed by House representative Sri Rahayu when delivering House statement in the judicial review of Law No. 24 of 2011 on the Social Security Administrative Agency (BPJS Law), Monday (27/1/2020). The petition No. 72/PUU-XVII/2019 was petitioned by retired and active civil servants (PNS). The Petitioners argue that Article 57 letter f and Article 65 paragraph (2) of the BPJS Law are unconstitutional.

Rahayu further explained that the principle is in line with the legal considerations of the Constitutional Court in Decision No. 138/PUU-XII/2014 on the judicial review of Article 5 paragraph (1) of the SJSN Law. The transfer from PT Taspen (Persero) to BPJS as referred to in the articles actually guarantees the fulfillment of the right to social security provided by the state. 

"Therefore, it is natural that social security is no longer handled by profit-oriented SOE PT Taspen, but transferred to special public legal entity BPJS so that the benefits are obtained, used, and returned to Employment BPJS participants," Rahayu explained before the session presided over by Chief Constitutional Justice Anwar Usman. 

In addition, Article 65 of the BPJS Law is to accommodate the smooth transfer process of the social security program from PT Taspen to the Employment BPJS. So, Rahayu explained, the transfer serves to strengthen the systems and institutions to develop a national social security system and was not intended to reduce the benefits and services provided to citizens. 

Special Arrangements

The Petitioners also presented three experts: law expert of the University of Indonesia Dian Puji Simatupang, actuary of the Sepuluh November Institute of Technology Wawan Hafid Syaifuddin, and former Constitutional Justice of 2003-2006 Maruarar Siahaan. 

Dian in her statement said that the social security for civil servants and state officials has special characteristics to encourage the quality of public services and public administration. The performance of state civil servants and state officials is expected to improve in line with the people\'s demands and expectations, as well as good governance. The legal certainty of social security for state civil servants and state officials is one of the factors preventing deviation. 

Therefore, it is necessary to minimize the possibility of changes in social security arrangements that reduce the benefits and increase the social security payment funded by the state budget. Dian added that social security for civil servants and state officials is employee expenditure that is always allocated in the state budget. The state\'s obligation to pay for social security is regulated by law that has special fiscal risks and state obligations. "Therefore, the regulation of social security of state civil servants and state officials is always guided and considered by the Minister of Finance because it involves fiscal risks or is related to the burden of state finances," Dian explained. 

In addition, according to Dian, social security of state civil apparatus (ASN) and state officials is the state\'s appreciation for its employees, where it does not act as a general regulator. Meanwhile, the social security for the general public is social protection to meet the basic needs of decent living. The social security for ASN and state officials is a protection for the continuity of life and a form of respect for their service. "The characteristics alone are very different. Social security for the general public is the fulfillment of basic economic, social, and cultural rights, while for state civil apparatus and state officials it is the fulfillment of sustainable economic, social, and cultural rights," Dian explained. 

Different Calculation

Actuary Wawan Hafid Syaifuddin in his statement compared what would be experienced by the Petitioners and citizens using mathematical formulas. He found a great difference of pension calculation between the new and old provisions.

Meanwhile, Maruarar Siahaan explained that according to the 1945 Constitution and Law No. 40 of 2004, existing social security agencies are not unconstitutional. "Because the existence, experience, and differences of groups of people served by different social security providers are not the same, especially in terms of employers, nature of work, and problems," he said.

Observing recent developments, Siahaan saw that the principle of mutual cooperation is not only carried out individually among mandatory social security participants, but also among existing supervisory agencies for mutual assistance when funds developed from the BPJS had incurred losses due to investment mistakes or other mistakes made by the organizers of the agencies.

In the petition, the Petitioners said that they felt that their constitutional rights have been impaired due to decreasing benefits and services due to the transfer of the TASPEN program, which so far has benefited the Petitioners, to BPJS. According to them, the government’s policy or legal politics separates the management of social security for civil servants and for others. This is stated in PP 45/2015 in conjunction with PP 46/2015, which confirms that the Implementation of the Old Age Benefits and Pension Benefits for Participants among employers of state administrators is excluded from the PP and is mandated to be regulated in a separate government regulation. 

According to the Petitioners, lawmakers intended that the implementation of the pension and old age benefits program for civil servants and state officials (employees who work for state administrators) be carried out separately from the management of that for employees who works private employers. The Petitioners feel there will be potential loss of rights in that the benefits obtained through participation in the pension and old age benefits program will disappear along with the enactment of the provisions of the articles. (Sri Pujianti/LA)

Translated by: Yuniar Widiastuti

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