Constitutional Justice Suhartoyo reading out the Court’s legal considerations at the ruling 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, Thursday (7/7/2022). Photo by Humas MK/Ifa.

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Thursday, July 7, 2022 | 15:19 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) rejected the entire judicial review petition of Law No. 40 of 2004 on National Social Security System (SJSN) as amended by Law No. 11 of 2020 on Job Creation. The pronouncement of the Decision No. 33/PUU-XX/2022 took place in the panel courtroom on Thursday, July 7, 2022. Reading out the Court’s legal considerations, Constitutional Justice Suhartoyo asserted that although the SJSN Law does not clearly accommodate the issue that potentially harm participants of old age benefits (JHT) who resign or are laid off, it has been regulated in the Regulation of the Ministry of Manpower No. 4 of 2022 on the Procedures and Terms of Payment of Old Age Benefits dated April 26, 2022.

Justice Suhartoyo added that the provision is regulated in Article 4 junctis Article 5 of the SJSN Law, which stipulates the benefits for participants who have paid premiums—those who have reached retirement age, has permanent total disability, or has passed away. Meanwhile, Article 8 regulates the benefits of JHT for participants who resign. Therefore, the Government has interpreted ‘retirement’ in the SJSN Law to also mean ‘someone who quits their job.’ Thus, the participants of Employment BPJS also includes participants who resign, are laid off, or leave Indonesia forever.

“Such regulation means that the Petitioner’s issue in the a quo case has been solve normatively, meaning that the withdrawal of the old age benefits for participants who resign can be done relatively fast as long as it complies with the procedure set in the ministerial regulation,” Justice Suhartoyo said.

Also read: Laid Off Without Old Age Benefits, Citizen Challenges SJSN Law

Regulated in Implementing Regulation

Constitutional Justice Suhartoyo added that the Court asserted that the legal solutions on potential harm that came to the Petitioner could be regulated in an implementing regulation on the condition that it does not harm the JHT participants’ rights as long as the resignation and layoff truly result in them not working or for reasons due to force majeure such as the COVID-19 pandemic. The reason why the expanded meaning should be regulated in an implementing regulation is so that it could fulfill the rights of the participants who resign or are laid off before they reach retirement age.

“Therefore, with all the aforementioned legal considerations, the Court is of the opinion that the provisions of Article 35 paragraph (2) and Article 37 paragraph (1) of the SJSN Law did not result in injustice, legal uncertainty, and discrimination as guaranteed in the 1945 Constitution as alleged by the Petitioner. Thus, the Petitioner’s petition is legally unwarranted in its entirety, while the rest/remainder was not further considered as it was considered irrelevant,” Justice Suhartoyo said before Chief Justice Anwar Usman and the other seven constitutional justices.

Also read: Petitioner of Provision on Old Age Benefits Strengthens Background

At the preliminary hearing, the Petitioner 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, he considers 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. He 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.

The Petitioner, Samiani, had previously 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.

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.’

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

Translation uploaded on 7/8/2022 09:50 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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