The judicial review hearing of the National Social Security System Law as amended by the Job Creation Law, Wednesday (3/23/2022). Photo by Humas MK/Bayu.

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Wednesday, March 23, 2022 | 15:40 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 40 of 2004 on National Social Security System (SJSN) as amended by Law No. 11 of 2020 on Job Creation in the panel courtroom on Wednesday, March 23, 2022. The Petitioner, Samiani, asserted that Article 35 paragraph (2) and Article 37 paragraph (1) of the SJSN Law as amended by the Job Creation Law contradicted Article 28D paragraph (1), Article 28H paragraph (3), and Article 28H paragraph (2) of the 1945 Constitution.

Article 35 paragraph (2) of the SJSN Law reads, “The old age pension scheme shall be administered with the aim of ensuring that participant receive cash when they reach the age of retirement, suffer permanent total disability, or die.” Article 37 paragraph (1) of the SJSN Law reads, “Old age pension benefits in the form of cash are paid at once to participants when they reach the age of retirement, die, or suffer permanent total disability.”

Legal counsel M. Sholeh explained that old age means when the worker is no longer able to work, as in old, become an entrepreneur, or laid off. However, the government’s stipulation in the a quo articles does not provide guarantee for participants who are laid off or resign. Thus, the Petitioner consider it discriminatory because workers with total disability get JHT (old age pension) benefits, while workers who are laid off must wait until they are 56 years old to get it. The Petitioner, Sholeh added, believes that the legislatures give for workers who experience permanent total disability, die, and retire different treatment than they do workers who resign and are laid off.

“When, in fact, they stop working all the same. Therefore, the a quo articles are against Article 28I paragraph (2) of the 1945 Constitution, which reads, ‘Everyone shall be entitled to be free from any discriminative treatment based on anything and obtain protection from the discriminative treatment,’” Sholeh explained before Constitutional Justices Suhartoyo (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh.

Therefore, in the petitum, the Petitioner requested that the Court declare Article 35 paragraph (2) and Article 37 paragraph (1) of the Law No. 40 of 2004 as amended by Law No. 11 of 2020 conditionally unconstitutional insofar as both be added with the phrase “resign and is laid off”.

Provisions on Resignation

In response to the case No. 33/PUU-XX/2022, Constitutional Justice Manahan M. P. Sitompul advised the Petitioner regarding Law No. 40 of 2004, which was amended by the Job Creation Law. He asserted that several laws are not included in the Job Creation Law. Therefore, the Petitioner was to ensure the amendment to the a quo articles in the Job Creation Law. He also asked the Petitioner to elaborate his legal standing as an active worker who had resigned from his previous workplace.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh requested that the Petitioner review the provisions on resignation and layoff. “Are there separate provisions in certain norms that explain the [JHT] participant that resign or is laid off? Because if [the petition on] the a quo articles is granted, it could potentially harm the Petitioner,” he said.

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

Translation uploaded on 3/24/2022 11:16 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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