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Expert for the President Bayu Dwi Anggono delivering his expertise virtually at a judicial review hearing of the BPJS Law, Tuesday (6/10). Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The provision on the transfer of the Asuransi Sosial Angkatan Bersenjata Republik Indonesia and pension program from PT Asabri (Persero) to the Employment BPJS per Article 65 paragraph (1) of Law No. 24 of 2011 on the Social Security Administrative Agency (BPJS Law) doesn’t contradict the 1945 Constitution, said director of Gadjah Mada University’s Center for Anti-Corruption Studies Oce Madril at a virtual judicial review hearing of BPJS Law on Tuesday afternoon, October 6, 2020. The Court head the testimonies of two experts for the President.

"This provision doesn’t contradict the 1945 constitution. This provision actually guarantees legal certainty for the social insurance program being run by PT Asabri," Oce said before the bench led by Chief Justice Anwar Usman.

Also read: Transfer from ASABRI Program to Employment BPJS Challenged 

According to BPJS Law 

Oce also said that the provision doesn’t deprives a person of social security rights. He believes Article 65 paragraph (1) of BPJS Law in fact guarantees the long-term sustainability of a social security system in Indonesia. “The transfer of the social insurance program to the Employment BPJS is a government policy related to the implementation of the [Law on National Social Security System (SJSN)] and the BPJS Law,” he said.

In relation to the transfer of the social insurance program for the state civil apparatus (ASN) by PT Taspen and its connection to the Employment BPJS, Oce said it is according to the BPJS Law, therefore is not related to constitutionality issue. It is under the full authority of the legislators. Although the Constitutional Court Decision No. 98/PUU-XV/2017 is unrelated to the current case, he said it could be used as a reference in this case.

Also read: Military Retirees Revise Petition on BPJS Law 

Oce revealed that the social insurance programs by PT Asabri and PT Taspen are in a transition period since the passing of the Constitutional Court Decision No. 007/PUU-III/2005, which declares Article 5 paragraphs (2) and (3) of Law No. 40 of 2004 (SJSN Law) regulating the four Persero companies (Jamsostek, Asabri, Taspen, and Askes) as BPJS unconstitutional and not legally binding. After the establishment of BPJS according to the SJSN Law, the transition period continues. He added that the current focus is the transfer of the social insurance program by PT Asabri to BPJS.

“The transfer covers four programs: work accident insurance, old age savings, pension plans, and life insurance. The procedure is regulated specifically in the BPJS Law in Article 65 paragraph (1) that PT Asabri is tasked with completing the transfer by 2029,” Oce stressed.

Also read: House: Transfer of Pension to BPJS Not Detrimental to Military Retirees 

Mandate of the 1945 Constitution 

The other expert Bayu Dwi Anggono said the state social security system must be developed. Although it isn’t regulated in the 1945 Constitution, Article 34 paragraph (4) of the 1945 Constitution is an open legal policy that mandates regulation in a law. “In Article 34 paragraph (4) or other articles of the 1945 Constitution, there is no provision that explains, regulates, or provides clear limitation of the social security system that the state must develop. There are only constitutional criteria in developing it, which shall cover all the people and empowers weak and poor communities according to human dignity,” said the director of Jember University’s Center for Pancasila and Constitutional Studies.

He believes that the Constitutional Court ruled that the management of social security by the BPJS with the purpose is appropriate and not in violation of the 1945 Constitution, after explaining that through Decisions No. 007/PUUIII/2005, No. 50/PUU-VI/2010, and No. 98/PUU-XV/2017 the Constitutional Court has passed its constitutional interpretation: “The 1945 Constitution explicitly obliges the state to develop a social security system, but [it] doesn’t oblige the state to adopt or choose a particular system in the development of said system.”

Also read: BPJS: Transfer of Pension Doesn’t Reduce Benefits for Participants

Bayu talked about the social security systems in several countries. In South Korea, it is implemented by the National Health Insurance Corporation, an independent, autonomous, nonprofit public legal entity that reaches all the population. In the United States, the social security system is regulated in a law and implemented by Social Security Administration, a national government agency managed by the federal government. “In Germany, there are many social security agencies. Now there are only around 200 left out of the initial 5,000. This shows that every country has a different model,” he said.

Also read: Expert: Military and Police Need Different Pension Programs 

The case No. 6/PUU-XVIII/2020 was filed by retired Indonesian military (TNI) officials Endang Hairudin, M. Dwi Purnomo, Adis Banjere, and Adieli Hulu, who challenge Article 65 paragraph (1) of the BPJS Law that reads, "PT Asabri (Persero) shall transfer its social insurance program for the Armed Forces of the Republic of Indonesia and pension program to BPJS Employment at the latest by 2029."

The Petitioners argued that the article potentially harm their constitutional rights. They used to receive duties that carry the risk of death, disability, missing in action, and high mobility. After retirement, they expect not to lose the pension benefits that they have been receiving from PT Asabri, especially position confidentiality and personal data that they believe must be kept according to their oath.

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
PR: Muhammad Halim
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 10/09/2020 15:01 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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