Constitutional Justice Saldi Isra reading out a concurring opinion at the judicial review hearing of Law No. 19 of 2019 on the Corruption Eradication Commission, Tuesday (8/31/2021) in the plenary courtroom. Photo by Humas MK/Ifa.
Tuesday, August 31, 2021 | 21:43 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire judicial review petition of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law), said Chief Justice Anwar Usman alongside the other eight constitutional justices when pronouncing the Decision No. 34/PUU-XIX/2021 on Tuesday, August 31, 2021.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” Justice Anwar stressed.
The case was filed by Muh. Yusuf Sahide, the executive director of the NGO KPK Watch Indonesia. He challenged Article 69B paragraph (1) and Article 69C of the KPK Law against Article 1 paragraph (3) and Article 28D paragraphs (2) and (3) of the 1945 Constitution. Article 69B paragraph (1) of the KPK Law 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. Article 69C of the KPK Law 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 argued that the two articles could potentially harm the constitutional rights of his NGO that was concerned about the KPK’s performance. He believed the status transfer of KPK employees that required civic knowledge testing (TWK), which led to some of them not passing the test and lost their right to a fair remuneration, could potentially harm him.
The Court held that it was not accurate that the Petitioner compared the a quo issue with the right to a fair remuneration, which is regulated in the Equal Remuneration Convention, 1951 because the convention focuses more on equal rights between men and women in relation to remuneration including wage or salary.
The Court also held that the Petitioner had misinterpreted the rule of law only to the design of the transfer of KPK employees to ASN. It maintained that, according to its considerations in Decision No. 70/PUU-XVII/2019, the law in question was the law on ASN—Law No. 5 of 2014 and its implementing regulations.
The Court also observed that the specificity of the transfer’s design, as regulated in the Government Regulation (PP) No. 41 of 2020, was aimed at strengthening the KPK’s independence without disregarding Law No. 5 of 2014 on ASN, which bounds all ASNs.
The Court was of the opinion that the Petitioner should have considered that the existing design had been based on the law and regulations that realized rule of law as regulated in Article 1 paragraph (3) of the 1945 Constitution, which guarantees protection and fair legal certainty as per Article 28D paragraph (1) of the 1945 Constitution.
The Court also considered the Petitioner’s argument that the TWK had violated the right to recognition, guarantee, protection, fair legal certainty, and equality before the law as per Article 28D paragraph (1) of the 1945 Constitution. It held that this fact was indirectly related to the opportunity to occupy public offices in casu KPK investigators and/or researcher in order to take part in government, and is more related to due process of law in a democratic rule of law. this means that the Petitioner’s argument could only be considered if in the context of due process of law any norm had denied him of fair legal certainty and equality with other citizens who had the same status as him in casu the KPK employees who didn’t pass the TWK.
The Court held that Article 28D paragraph (1) of the 1945 Constitution was not meant to guarantee that anyone in a public office cannot be dismissed with the reason to guarantee and protect legal certainty, which means that all employees had the same opportunity to become ASNs under the requirements set by statutory law. The provision in the two articles of the KPK Law not only applied to the Petitioner in casu KPK employees who did not pass the TWK, but also to all KPK employees. Therefore, the Court held that the a quo provision was not discriminatory. The fact that a number of KPK employees did not pass the test was not a norm constitutionality issue, so the Petitioner’s argument that the articles were unconstitutional was legally groundless.
Also read: TWK Assessment of KPK Employees Challenged Again
Concurring Opinion
Four of the justices—Constitutional Justices Wahiduddin Adams, Suhartoyo, Saldi Isra, and Enny Nurbaningsih—had a concurring opinion. They held that the Constitutional Court Decision No. 70/PUU-XVII/2019 had firmly stated that KPK employees became ASNs due to the KPK Law. Therefore, the KPK law set that the transfer takes place within 2 years since it came into force.
“This means that KPK employees became ASNs not voluntarily, but as ordered by the law in casu Law No. 19 of 2019. It was affirmed that based on Law No. 19 of 2019, the transfer to ASN is a legal right for KPK investigators, researchers, and employees,” Justice Saldi read out.
Under the concept of legal certainty, Articles 69B and 69C of the KPK Law should be interpreted as fulfilling the citizens’ constitutional rights, in casu that of KPK investigators, researchers, and employees to be transferred to ASN pursuant to Article 27 paragraph (2), Article 28C paragraph (2), and Article 28D paragraphs (1) and (2) of the 1945 Constitution. In this context, even if the a quo petition was rejected, its legal considerations could serve as a momentum to affirm the Court’s stance on the status transfer of KPK investigators, researchers, and employees to ASN as a right that must be fulfilled following the Constitutional Court Decision No. 70/PUU-XVII/2019.
Also read: Petitioner of KPK Law Affirms Posita
The Petitioner, M. Yusuf Kahide, challenged Article 69B paragraph (1) of the KPK Law. He is an advocate and legal consultant as well as the executive director of the NGO KPK Watch Indonesia.
He alleged 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 (PP) No. 41 of 2020 on the Transfer of the KPK Employees into ASNs do not require TWK.
Meanwhile, Article 5 paragraph (4) 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 alleged 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.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/6/2021 08:35 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, August 31, 2021 | 21:43 WIB 200