Chief Justice Anwar Usman presiding over the ruling hearing of the Social Security Administrative Agency (BPJS) Law for case No. 72/PUU-XVII/2019, Thursday (9/30/2021). Photo by Humas MK/Ilham W.M.

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Thursday, September 30, 2021 | 15:29 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) repealed a provision on the transfer of pension fund management from state-owned pension insurance firm PT TASPEN (Persero) to the Employment BPJS (Workers Social Security) in Article 57 letter f and Article 65 paragraph (2) of the BPJS Law. Through Decision No. 72/PUU-XVII/2019, the Court declared both articles unconstitutional and not legally binding. The verdict was read out by Chief Justice Anwar Usman alongside the other eight constitutional justices on Thursday, September 30, 2021.

Also read:

TASPEN Transferred to Employment BPJS, Retirees Go to Court

Additional State Civil Apparatus Challenges BPJS Law

Reading out the Court’s legal considerations, Constitutional Justice Saldi Isra said the Court had considered the citizens’ right to proper occupation and livelihood according to their abilities as referred to in Article 27 paragraph (2) and Article 28C paragraph (1) of the 1945 Constitution. When someone has chosen a certain job, they bear all rights, obligations, and risks for their choice.

Meanwhile, the implementation of state-mandated social security system may vary based on the types of jobs. Therefore, the change in the state social security agency through liquidation or merger will result in legal uncertainty for those who have chosen to participate in the old age and pension benefits of said agency.

“Therefore, the Court stresses that although Law No, 40 of 2004 obligates the institution dealing with social security to transform into the social security administrative agency, it does not mean that the institution is abolished [and replaced with] another model that has different characteristics. The transform should be done to the form of legal entity by adjusting and strengthening regulations that mandate the regulation of social security providers by law,” Justice Saldi said.

Also read: Govt: Regulations for PT Taspen\'s Benefits and Employment BPJS Differ

In addition, the Court asserts that when the legislatures merge the company with another that has different characteristics, the participants of the old age and pension benefits in that company might suffer losses. This is because during the merger, there is likely to be uniformity of standards of services, work-accident insurance, old age insurance, pension insurance, and life insurance for all the participants.

“Therefore, although the option to transform PT TASPEN (Persero) into the Employment BPJS was a policy by the legislatures, it must consistent with the concept of [both] institutions so as to keep providing legal certainty of the social security of citizens who registered with PT TASPEN (Persero),” Justice Saldi said.

Also read: House: Transfer of Taspen to Employment BPJS Based on Mutual Cooperation

Mutual Cooperation

Law No. 24 of 2011 defines mutual cooperation in social security as the principle of cooperation among the participants by bearing the burden of social security costs through contributions paid according to the participants’ levels of salary, wages, or income. Civil servants’ (PNS) old-age insurance and pension payments are actually arranged in Article 1 of Law No. 11 of 1969 on the Pension of Employee and Pension of Employee’s Widow/Widower, the Government Regulation No. 20 of 2013 on the Social Insurance of Civil Servants, and the Government Regulation No. 70 of 2015 on Work-Accident Insurance and Life Insurance for State Civil Apparatuses (ASNs).

Therefore, Justice Saldi said, the Petitioners’ concrete cases over the design of the Employment BPJS’ pension program and old-age insurance for all elements of society as a manifestation of mutual cooperation cannot be used as a justification because although both Healthcare and Employment BPJS collect payments from their participants, it is not the same concept as the social security payments made by civil servants.

“Therefore, the Court asserts that it is unfair that PNS retirees, who make monthly payments with the hope to enjoy the saving in old age, have to share with others for the sake of mutual cooperation. Although the Court supports such a principle for the welfare of the people, in the context of old-age insurance and pension program, it is not right if such a principle of mutual cooperation is imposed on PNS in the old age,” he stressed.

Also read: PT Taspen: Pension Benefits as Appreciation for Civil Servants\' Services

Multiple Institutions

The Court recommended fulfilling the mutual cooperation principle by merging the employment social security in multiple institutions, not in a single one, and not merging all employment social security companies into one body. Such transformation, it argued, would lead to legal uncertainty due to inconsistency of the institutional design and uncertainty of the participants’ fate.

“Therefore, the Petitioners’ arguments that the transfer of PT TASPEN (Persero) as referred to in the a quo law was in conflict with everyone’s right to social security as referred to in Article 28D paragraph (1) of the 1945 Constitution is legally valid,” Justice Saldi said.

Also read: Govt\\'s Expert: Reform of Civil Servant Pension Based on Right and Appreciation

The Petitioners, who are retired and active civil servants (PNS), argued that there would be potential loss of rights in that the benefits obtained through participation in the pension and old age benefits program will disappear along with the enactment of the provisions of the articles.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/2/2021 14:20 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.

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