The Attorney General’s legal counsel Feri Wibisono testifying virtually at the judicial review hearing of Law No. 11 of 2021 on Public Prosecution, Tuesday (10/11/2022). Photo by MKRI/Ifa.

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Tuesday, October 11, 2022 | 16:07 WIB

JAKARTA, Public Relations—The change of public prosecutors’ retirement age from 62 years to 60 years, is regulated in Article 40A of the Prosecution Law, has taken into account comparisons to that in several other countries. In Singapore, for example, the Attorney General can be appointed for a certain period and up to the age of 60 years. This is also mentioned in the academic text for the Prosecution bill.

The statement was made by the Attorney General’s legal counsel Feri Wibisono at the judicial review hearing of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on Prosecution in the Constitutional Court (MK) on Tuesday, October 11, 2022 for case No. 70/PUU-XX/2022, which had been scheduled to hear the Attorney General’s Office (Relevant Party) and the Petitioners’ experts.

Feri said the change, which was enacted since December 31, 2021, is to provide a sense of justice, benefit, and legal certainty for society. The change in age limit for public prosecutors not only applies to retirement age, but also to the minimum age, initially at 25 years then changed to 23 years and a maximum of 30 years.

“This shift is because undergraduate students are now completing their studies faster and in order to provide the possibility of longer career opportunities,” he said.

Feri revealed that in 2017-2021, prosecutors aged 60-62 years were less productive in research, investigation, and prosecution as well other functions required by law. Taking that evaluation into account, with the low benefit of retirement age at 62 years, the number of prosecutors aged 60-62 years being below 10%, and the difficulty of increasing their spirit and performance, the 60-year age limit as per Article 12 letter c and the age shift in Article 40A of the Prosecution Law was appropriate.

He emphasized that the tenure reduction for prosecutors approaching the retirement age limit of 60 years whose appointments were prior to the enactment of Article 40A of the Prosecution Law cannot be seen as a legal discrimination because prosecutors have different tenures and according to their age at the time of their appointment. As such, the impact of such reduction does not constitute legal discrimination.

“Based on all those data and facts, in principle the change in the retirement age limit from 62 years to 60 years, as referred to in Article 12 letter c of the Prosecution Law and whose transition is regulated in Article 40A of the Prosecution Law, is an open legal policy based on the organization’s needs and evaluation results of morale and performance of prosecutors aged 60-62 years who are less qualified so they do not conflict with the 1945 Constitution and have fulfilled a sense of justice, usefulness, and legal certainty for changes in legal politics, improvement of human resources in Public Prosecution,” he added. 

Provision on Age Limit Change

At the hearing, the Petitioners presented two experts: Kasandra Putranto and Bivitri Susanti. Kasandra Putranto, the main clinical forensic psychologist at Kasandra & Associates, said that any new policy must serve a purpose and there must be a transition process that is in accordance with existing provisions not only from a legal perspective but also from a physical and mental health perspective.

She emphasized that the World Health Organization (WHO) set the productive age at up to 65 years, while in some countries it is up to 62 years. If Indonesia wants to make a different policy, there must be a smooth transition process. While the limit is set at 60 years, the retirement age limit as regulated in the a quo Law can still be followed because the cutting point was January 1, 1962.

Kasandra emphasized that the transitional provision (overgangs bepalingen) in a statutory regulation is a legal provision that functions to prevent parties from being harmed by changes in the provisions of a statutory regulation.

With the enactment of the transitional provision of Article 40A on December 31, 2021, there is potential harm to a certain age group, because for those aged 60 years or more or born between January 1, 1959 and January 1, 1961, the provision on the retirement age limit as regulated in Law No. 16 of 2004 on Public Prosecution might still be followed.

She added those under 60 years old would subject to the retirement age as stipulated in Law No. 11 of 2021 on Prosecution, which means those under 59 years old or born before and on January 1, 1962 still has 1 year to adjust to the new provision. However, those aged over 59 and under 60 or born between January 2, 1961 and December 31, 1961 do not, thus might experience moral and material losses because they are not ready to face retirement. 

Reviewing Transitional Provision

Bivitri Susanti, a lecturer at Indonesia Jentera School of Law, viewed this as a procedural and democratic technical detail and that Indonesia tend to be technocratic in making and reviewing laws, thus forget the impact that might arise.

She believed the Petitioners were impacted by the According to him, these applicants are people who are affected by the Prosecution Law, especially in terms of pension, which is often associated with figures that describe age, state budget, number of employees, etc. Yet there is justice that must be questioned and explored.

“So, for people who are affected, this is not just an impact, not just a matter of numbers, whether the state will benefit or be harmed by prioritizing the retirement age of prosecutors or not, but also a matter of justice,” she explained virtually.

Bivitri asserted, theoretically, transitional provisions (overgangs bepalingen) in a statutory regulation function to ensure that changes to said provisions would not cause harm to any role occupant of the regulation. The emphasis is not only on legal certainty (with clear regulations), but also justice. Transitional provisions are important precisely because there are potential negative impacts arising from a transition period from an old situation to a new situation caused by the enactment of a statutory regulation.

“It’s so important that in the guides to several other countries’ designs, which I had read for this expert opinion, gave warning to designers so as not to forget the aspect of justice in regulating the transition period,” Bivitri said.

The New South Wales Parliamentary Counsel’s Office Drafting Practice Document states that transitional provisions regulate the enactment of a law and, if needed, change to its implementation during the transition period. It describes in considerable detail the relation to common law and methods of interpretation.

She asserted that the transitional provisions are not only a matter of legal certainty with a clear arrangement, but also justice for parties affected by changes in regulations. Two groups are affected by the Prosecution Law due to different treatment and there is injustice due to discrimination against a group of prosecutors who were not yet 60 years old on December 30, 2021.

Bivitri said the legislature should have prevented this negative impact through the transitional provision. However, even more injustice occurred when this discrimination was not communicated. This indicated that the transitional provision served only to ensure legal certainty for the Government in managing salary for prosecutors who would be honorably discharged because of the a quo Law. The purpose of Article 40A of the Prosecution Law as a transitional provision must be returned to its actual goal, that is, justice for parties affected by it, not just to provide legal certainty and benefits for the state. 

Also read: 

Prosecutors Challenge Retirement Age Limit

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        : Utami Argawati
Editor        : Nur R.
PR            : Raisa Ayudhita
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/19/2022 08:32 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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