Chief Justice Anwar Usman presiding over the plenary ruling hearing of the judicial review of Law No. 24 of 2011 on the Social Security Administrative Agency for case No. 6/PUU-XVIII/2020, Wednesday (9/29/2021). Photo by Humas MK/Ilham W.M.

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Wednesday, September 29, 2021 | 16:52 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the ruling hearing of the judicial review of Law No. 24 of 2011 on the Social Security Administrative Agency (BPJS) on Wednesday, September 29, 2021 in the plenary courtroom virtually. The Court passed a verdict to grant the Petitioners’ entire petition and declared Article 57 letter e and Article 65 paragraph (1) of the BPJS Law unconstitutional and not legally binding.

“[The Court] adjudicated, grants the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman alongside the other eight constitutional justices at the hearing for case No. 6/PUU-XVIII/2020. 

The Court asserted that the background of the petition was similar to the of the case No. 72/PUU-XVII/2019, in which the Court ruled that the merger of a persero company that managed social security into the Healthcare BPJS and the Employment BPJS pursuant to Article 57 and Article 65 of Law No. 24 of 2011 was not in line with the legislatures’ intent when forming Law No. 40 of 2004 on the National Social Security System, which supports multiple agencies. Therefore, the transfer of social security agency to the Employment BPJS led to legal uncertainty in relation to the transformation of such social security agencies, each of which having their own characteristics and distinctions.

The Decision No. 72/PUU-XVII/2019 states that although Law No. 40 of 2004 mandated the transformation of social security agencies, it should not mean that those agencies be dissolved or merged with another company 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. This is to avoid potential harm to the rights of participants of old-age insurance program and to policy payments that participants have made before the transfer, especially regarding the benefits.

“Therefore, although the option to transform [Asabri] into the Employment BPJS was a policy by the legislatures, it must consistent with the concept of [both] institutions, which cannot be separated from their distinct characteristics, so as to keep providing legal certainty of the social security of citizens who registered with them as guaranteed in Article 28D paragraph (1) in conjunction with Article 28H paragraph (3) and Article 34 paragraph (2) of the 1945 Constitution,” said Constitutional Justice Suhartoyo reading out the Court’s legal considerations.

Based on that, the transfer of PT ASABRI (Persero) as referred to in Article 57 letter e and Article 65 paragraph (1) of the BPJS Law has violated the citizens’ right to social security that allows them to develop themselves fully as human beings with dignity, pursuant to Article 28D paragraph (1) of the 1945 Constitution as well as the state’s duty to develop social security systems for all citizens and to empower the marginalized and the poor in accordance with human values as referred to in Article 34 paragraph (2) of the 1945 Constitution. The legal considerations of the Decision No. 72/PUU-XVII/2019 is also part of the those of the a quo case, mutatis mutandis, thus the Court ruled the Petitioners’ petition to be legally valid.

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President's Expert: Provision on Pension Program Transfer Asabri to BPJS Constitutional

Retired Indonesian military (TNI) officials Endang Hairudin, M. Dwi Purnomo, Adis Banjere, and Adieli Hulu challenged Article 65 paragraph (1) of the BPJS Law, which 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 could potentially harm their constitutional rights. As members of the military, they face different risks than civilians, thus, they saw the need for a different social security for them. Their duty carries high risk and can result in death, disability, disappearance, as well as mental health issues. In addition, despite being non-active, they could be called to duty as reserves when necessary. This has impacts on their and their families’ lives.

The confidentiality of their position and personal information must be kept, even when they are not in active duty. But it could potentially be harmed by the transfer from Asabri to the Employment BPJS. They cannot form workers union and must participate in the Asabri social security as mandated by the statutory laws. They must also remain neutral in politics and do not have the right to elect and be elected in politics. As such, they cannot be equated with other participants of the Employment BPJS.

They faced legal uncertainty because the benefits that they have received, which fit their situation, could potentially be reduced after the transfer. 

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/3/2021 09:59 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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