Constitutional Justices Suhartoyo, Arief Hidayat, and Saldi Isra opening the panel preliminary hearing of the material judicial review of Law No. 11 of 2021 on Prosecution, Tuesday (7/19/2022). Photo by Humas MK/Hendy.

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Tuesday, July 19, 2022 | 20:01 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on Prosecution. The hearing was presided over by Constitutional Justices Suhartoyo (panel chair), Arief Hidayat, and Saldi Isra on Tuesday, July 19, 2022 virtually from the plenary courtroom.

The petition No. 70/PUU-XX/2022 was filed by five public prosecutors—Irnensif, Zulhadi Savitri Noor, Wilmar Ambarita, Renny Ariyanny, and Indrayati Siagian (Petitioners I-V). They challenge Article 12 letter c and Article 40A of the Prosecution Law.

Article 12 letter c of the Prosecution Law reads, “The Prosecutor shall be honorably discharged from his/her position because he/she: … c. has reached the age of 60 (sixty) years.”

Article 40A of the Prosecution Law reads, “At the time this Law comes into force, the dismissal of Prosecutors aged 60 (sixty) years or more shall continue to comply with the provisions on the retirement age limit as stipulated in Law Number 16 of 2004 concerning the Public Prosecution of the Republic of Indonesia (State Gazette of the Republic of Indonesia of 2004 Number 67, Supplement to the State Gazette of the Republic of Indonesia Number 4401).”

Petitioners’ Argument

The Petitioners’ legal counsel Viktor Santoso Tandiasa said at the hearing that the Prosecution Law had harmed the Petitioners. Petitioners I, II, and III turned 60 on March 1, 2022; March 3, 2022; and April 16, 2022, respectively. They were impacted by the norms when entering retirement.

“In addition, the enactment of the a quo norms had caused restrictions on the careers and promotions of Petitioners I, II, and III,” he said.

Petitioners IV and V, who will turn 60 on November 24 and October 24 respectively, also experienced this. Based on those provisions, Viktor added, they would be forced to resign, hence restricting their careers and promotions.

“Due to those provisions, the Petitioners do not receive guarantee and fair legal protection as well as equality before the law, as guaranteed in Article 28D paragraph (1) of the 1945 Constitution. In addition, as citizens they did not receive equal opportunities as regulated in Article 28D paragraph (3) of the 1945 Constitution,” he emphasized.

Also read:

Five Prosecutors Challenge Provision on Retirement Age

Petitioners of Attorney General’s Office Law Revise Posita

Petitum Contradictory, Petition on Attorney General’s Office Law Dismissed 

Justices’ Advice

Constitutional Justice Arief Hidayat observed at the petition format, which he believed was in accordance with the Constitutional Court Regulation (PMK) No. 2 of 2021. He advised that the articles being challenged should be contested with articles in the 1945 Constitution, which would act as touchstones.

“So that you can really contest, compare, so that there is a conclusion from this petition that the articles challenged by the Petitioners contradict the articles in the 1945 Constitution. [This is] because the articles challenged are not explicitly regulated in the Constitution, so further regulation is left to the [House] and the Government,” he said.

Meanwhile, Constitutional Justice Saldi Isra advised the Petitioners on the petitum and the background to the petition. “In petitum No. 5, [the Petitioners request] that the Court orders the annulment of the articles being challenged by the Petitioners. The reasons for filing the petition must be explained so that there is a connection between the petitum and the posita. If the petitum and the posita are not connected, the petition would be obscure. Also add an explanation of how many prosecutors were affected by the enactment of the articles challenged by the Petitioners,” he said.

Meanwhile, Constitutional Justice Suhartoyo advised that the Petitioners’ posita be given an explanation of the duties of the prosecutor at the age of 60. What are the main duties of prosecutors aged 60 to 62?

“Because there is a term ‘functional prosecutor,’ who is concretely no longer goes on trial, does not hold a structural position, and so on. Is the state paying the salaries of prosecutors over the age of 60 relevant to their responsibilities or not? So, in this new Prosecution Law, this relevance [should be] questioned,” he said. 

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

Translation uploaded on 7/21/2022 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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