The Petitioner and his counsels at the virtual preliminary hearing of the judicial review of Law No. 19 of 2019 on the Corruption Eradication Commission, Monday (2/8/2021). Photo by Humas MK/Ifa.
Monday, August 2, 2021 | 17:57 WIB
JAKARTA, Public Relations—A preliminary judicial review hearing of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law) was held by the Constitutional Court (MK) on Monday, August 2, 2021. The hearing was presided over by Chief Justice Anwar Usman (panel chair) and Constitutional Justices Arief Hidayat and Daniel Yusmic P. Foekh.
The case No. 34/PUU-XIX/2021 was filed by M. Yusuf Kahide, who was accompanied by his counsels Iwan Gunawan and colleagues. The Petitioner challenges Article 69B paragraph (1) of the KPK Law, which states that when the law comes into force, KPK investigators who have not been state civil apparatus (ASN) employees within a maximum period of 2 years since the law comes into force can be appointed as ASN employees as long as they comply with the provisions of legislation.
He also challenges Article 69C of the KPK Law, which states that when the law comes into force, KPK employees who have not been ASN employees within a maximum period of 2 years since the law comes into force can be appointed as ASN employees as long as they comply with the provisions of legislation.
The Petitioner, who attended the hearing virtually, is an advocate and legal consultant as well as the executive director of the NGO KPK Watch Indonesia. He said that the results of the civic knowledge testing (TWK) had been used as a new basis for appointing KPK employees as ASNs when no provision required it. Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the KPK, Law No. 30 of 2002 on the KPK, and the Government Regulation No. 41 of 2020 on the Transfer of the KPK Employees into ASNs do not require TWK. Meanwhile, Article 5 paragraph (1) of the KPK Regulation No. 1 of 2021 requires KPK employees to join an assessment process to become ASNs.
As a consequence of the use of the TWK as a requirement, the phrase ‘can be appointed as ASN employees as long as they comply with the provisions of legislation’ in Article 69B paragraph (1) and Article 69C of Law No. 19 of 2019 has been expanded.
The Petitioner alleges that Article 69 paragraph (3) of the KPK Law is in violation of Article 28D paragraph (2) of the 1945 Constitution, which lays out two basic rights in employment—fair payment and treatment in employment. Such fairness can be interpreted as equal payment for the same jobs without discrimination on the basis of ethnicity, race, religion, political view, regional origin, and gender in accordance with the principles in the Discrimination (Employment and Occupation) Convention, 1958 that Indonesia ratified. Proper matters in employment can be interpreted according to the convention, including job access to work requirements, said Yusuf Kahide as the Petitioner.
The transfer of KPK employees into ASNs, he believes, must maintain a basic principle in the Constitution—fair and proper payment and treatment in employment. This includes no reduced payment for KPK employees after they become ASNs as well as freedom from discrimination and no loss of work.
Justices’ Advice
Constitutional Justice Arief Hidayat said that the articles in question have been reviewed and decided on by the Court. He advised the Petitioner to take it into consideration so that the case would not be ne bis in idem, pursuant to Article 70 of the Constitutional Court Law. He had also observed the format and structure of the petition and advised that the closing be revised, as it is nonexistent in a judicial review petition in the Constitutional Court. He explained that a petition included the petitioner’s profile, the Court’s authority, the article(s) to review, the touchstone(s), the petitioner’s legal standing, the posita, and the petitum. He also advised the Petitioner to add the latest Constitutional Court Law in the part detailing the Court’s authority.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised that the Petitioner emphasize the constitutional impairment suffered by the NGO that he chairs and elaborate on its activities. He revealed that once, a petition was filed to the Court involving an NGO that had just been founded and had not had any activity. He also advised the Petitioner to study the format of the petition through the Constitutional Court Regulation No. 2 of 2021.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/3/2021 15:40 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.
Monday, August 02, 2021 | 17:57 WIB 279