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Panel revision hearing of the judicial review of the ASN Law, Tuesday (25/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The revision hearing of the judicial review of Law No. 5 of 2014 on State Civil Apparatus (ASN) was held by the Constitutional Court (MK) Tuesday (25/2/2020) in the Plenary Courtroom of the Constitutional Court. The session was presided over by Constitutional Justice Daniel Yusmic P. Foekh, along with Constitutional Justices Saldi Isra and Manahan M. P. Sitompul.

Through attorneys Paulus Sanjaya and partners, the Petitioners, who are contract teachers and nurses, asserted that Article 99 paragraphs (1) and (2) of the ASN Law leads to discrimination and the loss of human rights, therefore is contrary to Article 28I paragraphs (2) and (4) of the 1945 Constitution and must be interpreted "with the exception of contract-based staff or other similar designations and PPPK originating from contract-based staff."

The ASN Law defines government employees or ASNs as Civil Servants or PNS and government employees with work agreements for a specified period of time or PPPK. The status and position of contract-based staff are not regulated in the ASN Law. This certainly leads to unclear status and loss of protection of contract-based staff, both in the state employment system, labor law system, and other legal systems in force in Indonesia.

"The government has issued several laws and regulations related to the protection of temporary workers by providing opportunities to participate in CPNS selection. However, the Petitioners as contract-based staff cannot participate in the CPNS selection due to [not meeting] the requirements. In addition, the ASN Law does not regulate a transitional system from the previous regulation concerning the process of appointing contract-based workers to become CPNS," said Hechrin Purba, one of the Petitioners\\' attorneys.

Contract-based government employees (PPPK) cannot be automatically appointed to be prospective civil servants but must undergo a selection process. Law No. 13 of 2013 on Manpower stipulates that the work agreement of contract-based employees is applied based on the duration and execution of a job. Meanwhile, the ASN Law does not provide any time limit on the duration of PPPK contract in a government institution.

Attorney Paulus Sanjaya conveyed the Petitioners\\' petitum, which requests that the Court grant the entire petition and declare Article 6 of the ASN Law that reads, "ASN employees consist of: a. civil servants (PNS); and b. PPPK" contrary to Article 27 paragraph (2), Article 28D paragraph (2), and Article 28I paragraphs (2) and (4) of the 1945 Constitution and not legally binding insofar as not be interpreted as including contract-based staff or other similar designations as ASN employees.

They also argued that Article 58 paragraph (1) of the ASN Law that reads, "Procurement of civil servants is an activity to fill the needs of the administrative and/or functional positions in a government institution" is contrary to Article 27 paragraph (2) of the 1945 Constitution and not legally binding insofar as not be interpreted as giving an opportunity to contract-based staff or other similar designations to become CPNS through a special recruitment process.

They also argued that Article 99 of the ASN Law that reads, "(1) PPPK cannot be automatically appointed to become civil servant candidates. (2) To be appointed as civil servant candidates, PPPK must follow all the selection process for prospective civil servants and in accordance with the provisions of the legislation" is contrary to Article 28I paragraphs (2) and (4) of the 1945 Constitution and must be interpreted "with the exception of contract-based staff or other similar designations and PPPK originating from contract-based staff."

Also read:

Restricted by Age to Apply for CPNS, Contract Workers Challenge ASN Law

Contract teachers and nurses Mahmudin, Suyanto, Muhammad Nur Rambe, and others challenge Article 1 number 4, Article 6, Article 58 paragraph (1), and Article 99 paragraphs (1) and (2) of the ASN Law. The Petitioners of case No. 9/PUU-XVIII/2020 believe that the recruitment of contract workers to be prospective civil servants (CPNS) in the ASN Law is unclear. In the ASN Law there is absolutely no regulation on contract employers. This results in contract employers losing legal basis and policy in Indonesian law.

The Petitioners believe that the ASN Law stipulates that contract-based government employees (PPPK) cannot be automatically appointed to be prospective civil servants but must undergo a selection process. Many of them, however, cannot follow CPNS selection due to age restriction.

Law No. 13 of 2013 on Manpower stipulates that the work agreement of contract-based employees is applied based on the duration and execution of a job. Meanwhile, the ASN Law does not provide any time limit on the duration of PPPK contract in a government institution. Therefore, many contract employers have been working for a long time but cannot follow CPNS selection due to age restriction. (Nano Tresna Arfana/NRA)

Translated by: Yuniar Widiastuti

Translation uploaded on 2/26/2020

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