House Commission III member Supriansa testifying virtually at the material judicial review of Law No. 11 of 2021 on Public Prosecution, Thursday (9/22/2022). Photo by MKRI/Ifa.

---

Friday, September 23, 2022 | 10:50 WIB

JAKARTA, Public Relations—The judicial review of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on Prosecution was held by the Constitutional Court (MK) once again on Thursday, September 22, 2022. This third hearing for case No. 70/PUU-XX/2022 had been scheduled to hear the House of Representatives’ and the president/Government.

On behalf of the House, Commission III member Supriansa responded to the Petitioners’ argument of constitutional impairment. The House asserted that the retirement preparation period (MPP) is a period when employees are released from their duties and, thus, it is contrary to the Petitioners’ wish to have a career and develop themselves. Based on Article 9 paragraph (2) of the National Civil Service Agency (BKN) Regulation No. 2 of 2019, retirement preparation consists of basic salary, family allowances, and food allowances, without any performance allowances. In addition, MPP submission is optional. If the retirement age for prosecutors remained at 62 years old, it would not guarantee that the Petitioners would file an MPP, considering that the Petitioners’ benefits do not necessarily reflect their duration of service. Employee rights in the form of performance allowances and functional allowances were abolished when employees take the MPP.

“This is contrary to the Petitioners’ wish to earn income by extending their retirement period. Therefore, the Petitioners’ argument is unfounded to file a petition against the a quo article,” Supriansa explained virtually to the panel chaired by Chief Justice Anwar Usman.

Also read: Prosecutors Challenge Retirement Age Limit

Public Prosecutors to Retire at 60

The House believes Article 40A of the Prosecution Law has fulfilled the purpose of the transitional provisions in accordance with the Lawmaking Law because it has guaranteed legal certainty and legal protection for parties affected by changes in the provisions.

“The dismissal of public prosecutors who are 60 years old or older still follow the age limit as regulated in Law No. 16 of 2004, which is in accordance with the Constitutional Court’s legal considerations in Decision No. 9/PUU-IV/2006, in that the transitional provisions must contain the legal principle on previously acquired rights to be recognized. Therefore, the enactment of Article 40 of Law No. 11 of 2022 does not conflict with the purpose of the transitional provisions,” Supriansa explained.

In addition, the House believes the enactment of Article 40A of the Prosecution Law is irrelevant with the number of prosecutors from the Prosecution Office. The shortage can be overcome by recruiting new prosecutors periodically, not by increasing the retirement age for existing prosecutors. Quantity, the House asserted, does not always guarantee productivity and performance.

“So, that the regulation on retirement age limit will not restrict the performance of the Prosecution Office. If it had, the discussion on the provisions of the a quo article would not have been approved by the Attorney General, who discussed it with the legislators,” Supriansa said.

Also read:

Five Prosecutors Challenge Provision on Retirement Age 

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

Transitional Provision on Prosecutors’ Retirement Age

Meanwhile, acting Director-General of Legislation Dhahana Putra said on behalf of the Government that prosecutor who were not yet 60 when the Law was enacted would be honorably discharged at the age of 60, as stipulated in Article 12 letter c.

“Meanwhile, prosecutors who were 60 years old when the Law was enacted would be honorably discharged at 62, as stipulated in Article 12 letter c,” he said.

With the transitional regulation, the Government asserted, prosecutors who are 60 years old will retire at the age regulated in the old Prosecution Law. Consequently, they could be required to return part of their salaries to the state treasury because they have received salaries and benefits exceeding the retirement age limit. However, this does not happen with the transitional provisions. As for prosecutors who are not yet 60 years old will follow the new provisions on pension.

Also read: Public Prosecutors Revise Petition on Retirement Age 

The petition No. 70/PUU-XX/2022 on the material judicial review of the Prosecution Law was filed by six public prosecutors—Irnensif, Zulhadi Savitri Noor, Wilmar Ambarita, Renny Ariyanny, Indrayati Siagian, and Fahriani Suyuthi (Petitioners I-VI). They challenge Article 40A of the Prosecution Law.

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 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).”

At the preliminary hearing on Tuesday, July 19, legal counsel Viktor Santoso Tandiasa said 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. 

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

Translation uploaded on 9/12/2022 13:25 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.

---