Panel judicial review hearing of Law No. 7 of 2020 on the Constitutional Court, Monday (7/25/2022). Photo by Humas MK/Ifa.
Monday, July 25, 2022 | 16:46 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court on Monday, July 25, 2022 in the plenary courtroom. The case No. 72/PUU-XX/2022 was filed by Zainal Arifin Hoesein, Fardiaz Muhammad, and Resti Fujianti Paujiah.
The Petitioners challenge Article 7A paragraph (1) of the Constitutional Court Law, which reads, “The Registrar’s Office as referred to in Article 7 is a functional office that performs the judicial, administrative, technical duties of the Constitutional Court with the retirement age of 62 (sixty-two) for chief registrars, deputy registrars, and substitute registrars.”
The Petitioners’ legal counsel Heru Widodo said at the hearing that Zainal Arifin Hoesein was the Constitutional Court’s chief registrar in 2009-2011 who had to resign at 56 because the retirement age for chief registrars was not clearly regulated; Fardiaz Muhammad is currently working at a law firm; Resti Fujianti Paujiah is a graduate of the Litigation Institute of Indonesia; while Fardiaz and Resti could potentially become state civil apparatus (ASN) of the Constitutional Court’s Registrar’s Office and then build a career as registrars in the Constitutional Court.
“The Petitioners feel their constitutional rights were harmed or will potentially be harmed due to the article being petitioned because Petitioner I was a former chief registrar appointed based on the Presidential Decree No. 143 and so on. Due to the ambiguity of the retirement age for chief registrars in the Constitutional Court as referred to in Article 7 paragraph (1) of Law No. 24 of 2003 in conjunction with Article 7A paragraph (1) of Law No. 8 of 2011, the constitutional rights of Petitioner I were violated,” he explained virtually before Chief Justice Anwar Usman and Constitutional Justices Manahan M. P. Sitompul and Daniel Yusmic P. Foekh.
Heru added that on September 3, 2010, Zainal turned 56, thus must resign and retire from his chief registrar position.
“Referring to the registrar offices (chief registrar, deputy chief registrar, deputy registrar, and substitute registrar) in courts under the Supreme Court (MA) whose retirement age is clearly stipulated at 60 years for chief registrars, deputy registrars, and substitute registrars in first-instance courts and 62 years for chief registrars, deputy registrars, and substitute registrars in appellate courts, Petitioner I was not supposed to retire or resign from his position as chief registrar of the Constitutional Court,” he explained.
Retirement Age
The Constitutional Court’s chief registrar, Heru explained, is one of the leaders of the supporting units in the Constitutional Court, assisted by deputy registrars. One must have been a deputy registrar and/or senior substitute registrar, so following the legislation the retirement age is 65 for chief registrars, deputy registrars, and senior substitute registrars; 62 for middle-rank and intermediate substitute registrars; and 60 for junior substitute registrars.
“Referring to various provisions on the retirement age of functional positions of registrars in the Supreme Court, high courts, as well as expert functional positions of expertise, determining the retirement age of chief registrars, deputy registrars, and senior substitute registrars is highly appropriate because it is clearly regulated in legislation. In Law No. 5 of 2014, there is a change in ASN career path that is divided into functional positions, which comprise senior, middle-rank, intermediate, and junior levels,” Heru elaborated.
He also said along with the legislative change on expert functional positions and the retirement age of ASN due to the enactment of Law No. 5 of 2014 (ASN Law), the regulation on the retirement age of ASN registrars in the Constitutional Court has legally changed as well. However, Article 24C paragraph (6) of the 1945 Constitution stipulates, “The appointment and dismissal of constitutional justices, judicial procedures, and other provisions on the Constitutional Court shall be stipulated by virtue of law.” As such, this change should be regulated in law for the sake of fair legal certainty.
Heru asserted that the classification of retirement age in the Constitutional Court’s Registrar’s Office in the Constitutional Court Law, which differs from that of ASN in the ASN Law, constitutes unequal treatment against people or officials in law and government as referred to in Article 27 paragraph (1) of the 1945 Constitution and is against the principle of fair legal certainty as referred to in Article 28D paragraph (1) of the 1945 Constitution.
“In order to give equal treatment to people or officials in law and government as referred to in Article 27 paragraph (1) of the 1945 Constitution and fair legal certainty as referred to in Article 28D paragraph (1) of the 1945 Constitution, it is legally grounded to determine the Registrar as a functional office with administrative technical duties for the Constitutional Court led by a Chief Registrar whose office equals that of intermediate high leadership (echelon IA),” Heru said.
He added that to perform their duties, a chief registrar needs assistance from a deputy registrar, whose office equals that of junior high leadership (echelon IIA), and from a senior substitute registrar as well as other expert functional positions in judicial administration, and a registrar’s office. In order to reach equality of people or officials in law and government, it would be reasonable to determine that the retirement age for chief registrars, deputy registrars, and senior substitute registrars be 65; and for middle-rank, intermediate, and junior substitute registrars be 62.
In the petitum, the Petitioners requested that the Court declare Article 7A paragraph (1) of the Constitutional Court Law unconstitutional as long as not interpreted as “The Registrar’s Office as referred to in Article 7 is a functional office that performs the judicial, administrative, technical duties of the Constitutional Court led by a Chief Registrar whose office equals that of intermediate high leadership (echelon IA), with the assistance of a deputy registrar, whose office equals that of junior high leadership (echelon IIA), and of a senior substitute registrar, with the retirement age of 65 (sixty-five) for chief registrars, deputy registrars, and senior substitute registrars and 62 (sixty-two) for middle-rank, intermediate, and junior substitute registrars; and is supported by other expert functional positions in judicial, administrative, technical duties as well as by a Registrar’s Office.
Justices’ Advice
In response to the petition, Chief Justice Anwar Usman requested that the Petitioners observe Constitutional Court decisions including one in 2012 on judicial apparatus in the Supreme Court and the Constitutional Court, including registrars. Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to elaborate their legal standing.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/27/2022 09:09 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.
Monday, July 25, 2022 | 16:46 WIB 242