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The Petitioner’s attorney after the ruling hearing of the judicial review of the ASN Law, Tuesday (19/5) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The material review petition of Law No. 5 of 2014 on State Civil Apparatus (ASN) was rejected by the Constitutional Court (MK). The petition was filed by contract workers Mahmudin and 18 others. In its ruling, the Court rejected the entire petition. "The verdict adjudicated, rejects the Petitioners’ petition for its entirety," said plenary chairman Chief Constitutional Justice Anwar Usman along with the other constitutional justices in the pronouncement hearing of the Decision No. 9/PUU-XVIII/2020, Tuesday afternoon (19/5/2020).

In its opinion, the Court stated that the Petitioners had requested that their status as contract-based government workers or other equivalents or contract government employees (PPPK) be changed to prospective civil servants (CPNS). One of the bases of the issuance of the ASN Law is the need for state civil apparatus who have integrity, professionalism, neutrality, and freedom from political intervention as well as freedom from corruption, collusion, and nepotism.

In deciding on the petition, the Court rested on the legal considerations of the Constitutional Court Decisions No. 9/PUU-XIII/2015 and No. 6/PUU-XVII/2019, which in general has given careful consideration regarding contract-based government workers.

"Contract-based government workers should not have to worry that their constitutional rights will be violated by the enactment of the ASN Law because the ASN Law relating to the rights of contract-based government workers exists and accommodates the rights of contract-based government workers, who are currently still at work," said Constitutional Justice Wahiduddin Adams who read out the opinion of the Court. 

The Court also considered the Petitioners’ arguments that questioned their constitutional rights as contract-based government workers regulated by Article 6, Article 58 paragraph (1), and Article 99 paragraphs (1) and (2) of the ASN Law. According to the Petitioners, these articles created legal uncertainty because they are more likely to protect CPNS recruited publicly and ignore the constitutional rights of contract-based government workers who have served for years. According to the Petitioners, such treatment constitutes discrimination. 

With regard to the Petitioners’ arguments, the Court observed that the core of the Petitioners’ objection did not lie in Article 6, Article 58 paragraph (1), and Article 99 paragraphs (1) and (2) of the ASN Law but on Permenpan (Regulation of the Minister of Administrative and Bureaucratic Reform) 36/2018 and PP (Government Regulation) 49/2018. In addition, the Petitioners’ argument of their legal standing also showed that the main issue they questioned was related to the enactment of Permenpan 36/2018 and PP 49/2018, which directly resulted in the Petitioners not being able to automatically be appointed as PNS or PPPK.

"Therefore, following the Petitioners’ rationale, [their] objection was addressed not to the norms of Article 6, Article 58 paragraph (1), and Article 99 paragraph (1) and paragraph (2) of the ASN Law but to the statutory provisions under the law, of which review constitutionally are not the authority of the Court. Moreover, such delegation [from a law to statutory provisions under it] is justified in the legal system," Justice Wahiduddin added.

Therefore, according to the Court, based on the legal considerations, the Petitioners’ entire petition is legally groundless. 

The Petitioners are contract teachers and medical staff in several provinces. They challenged Article 6, Article 58 paragraph (1), and Article 99 paragraphs (1) and (2) of the ASN Law. They argued that Article 6 of the ASN Law had resulted in legal uncertainty as it prioritizes ASN recruits from the public channel, therefore contradicting Article 27 paragraph (2), Article 28D paragraph (2), and Article 28I paragraphs (2) and (4) of the 1945 Constitution. They believed that Article 58 paragraph (1) of the ASN Law should be interpreted to give an opportunity to contract-based workers or other similar designations to become CPNS through a special recruitment process so as not to lead to legal uncertainty that would make it conflict with Article 27 paragraph (2) of the 1945 Constitution.

The Petitioners also argued that Article 99 paragraphs (1) and (2) of the ASN Law led 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 workers." (Nano Tresna Arfana/NRA)

Translated by: Yuniar Widiastuti

Translation uploaded on 05/19/2020

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