Constitutional Justice M. Guntur Hamzah reading out the Court’s legal considerations at the ruling hearing of judicial review of Law No. 11 of 2021 on Prosecution, Tuesday (12/20/2022). Photo by MKRI/Ifa.
Tuesday, December 20, 2022 | 18:50 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) granted part of the judicial review petition of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on Prosecution. The Court declared Article 40A of the Prosecution Law unconstitutional and not legally binding if interpreted as “The provision of Article 40A of Law No. 11 of 2021, which implements a limit to the prosecutors’ retirement age as regulated in Article 12 letter c of Law No. 11 of 2021, is in force for five years since the Constitutional Court’s a quo decision is pronounced.” The Court also declares the retirement age in Law No. 16 of 2004 on Prosecution is also in effect five more years.
This was the verdict of Decision No. 70/PUU-XX/2022 read out on Tuesday, December 20, 2022. The petition 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, which 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).”
The ruling hearing was chaired by Chief Justice Anwar Usman alongside the other eight constitutional justices. In its legal considerations read out by Constitutional Justice M. Guntur Hamzah, the Court stated that Article 40A is a transitional provision governing the application of Article 12 letter c of Law No. 11 of 2021, which stipulates that prosecutors be honorably dismissed from their position at the age of 60. This transitional provision is necessary because Article 12 letter c of Law No. 11 of 2021 have legal implications for prosecutors that are affected by the change in the limit, which was originally 62 years, to 60 years.
“This change in the retirement age limit has raised problems for prosecutors who will be, have been, or have passed the age of 60. Therefore, the a quo transitional provision is a fundamental reference in enforcing the provisions for transitioning the a quo norm on prosecutor retirement age in relation to fair and non-discriminatory legal certainty,” said Justice Guntur reading out the Court’s legal considerations.
He also asserted that, in a previous decision, the Court had argued that basically transitional provisions are legal norms in a statutory regulation that are intended as a “bridge” between the application of old norms (laws) and the enforcement of new norms (laws) or replacement norms. Therefore, the transitional provisions contain adjustments to the existing laws and regulations when the new laws and regulations come into force, so that the new laws and regulations can run effectively and not cause legal problems.
Double Meanings
Justice Guntur further said the Court found double meanings in the grammatical interpretation of Article 40A of Law No. 11 of 2021. First, when Law No. 11 of 2021 came into effect (December 31, 2021) prosecutors who were 60 years old or above still followed the retirement age limit stipulated by Law No. 16 of 2004 (62 years). Second, it came into effect, the dismissal of prosecutors who are 60 years old or older still followed Law No. 16 of 2004 (retirement age at 62 years). In the second meaning, all prosecutors aged 60 years and above continued to be subject to Law No. 16 of 2004 even though the legislatures, in this case the President and the House, interpreted Article 40A of Law No. 11 of 2021 as the first meaning—where the retirement age limit of 62 years, as stipulated in Article 12 letter c Law No. 16 of 2004, still applies to prosecutors who are 60 years or older when Law No. 11 of 2021 came into force.
Preparation for Retirement
Regardless of the fact that the retirement age is an open legal policy, it is important for the Court to reiterate that changes to norms of the law must not harm affected parties, in this case prosecutors who are not yet 60 years old. Article 40A of Law No. 11 of 2021, which applies Article 12 letter c of Law No. 11 of 2021 immediately since of Law No. 11 of 2021 was enacted, has caused affected prosecutors to not have enough time to prepare for retirement.
The Court asserted that a person who is about to enter retirement has the right to prepare, both mentally and materially, because when retirement means cease or decrease of income, in this case state civil apparatuses (ASNs) will only receive limited pension rights. With the enactment of Article 40A of Law No. 11 of 2021, which led to the immediate dismissal of affected prosecutors, such decrease of income would immediately occur. In addition, prosecutors who are affected will also be disadvantaged because they immediately step down from office and lose two years of tenure, which may result decrease of retirement benefits due to inability to advance in rank. Even though it is material in nature, the Court asserted, such impairment cannot be separated from and could be part of the problem of the unconstitutionality of the law in question.
Therefore, imposing Article 12 letter c of Law No. 11 of 2021 immediately to all affected prosecutors, especially those under 60 years of age, since of Law No. 11 of 2021 was promulgated, has prevented affected prosecutors from having enough retirement preparation. Thus, Article 40A of Law No. 11 of 2021, which only provides protection for prosecutors who are 60 years old or older when the Law was enacted, has harmed prosecutors who are not yet 60 years old when it was promulgated, which the Court saw has created unfair and discriminatory legal uncertainty.
The Court is of the opinion that the Petitioner’s argument that Article 40A of Law No. 11 of 2021 was conditionally unconstitutional was legally grounded. However, because the interpretation that the Petitioners requested did not match the Court’s interpretation of “conditionally constitutional,” the Petitioners’ arguments were only seen to be legally grounded in part.
“Because the Petitioners’ arguments have legal reasons in part, the interlocutory decision of the Constitutional Court Number 70-PS/PUU-XX/2022, which was pronounced in a plenary session open to the public on October 11, 2022, must be declared valid,” said Constitutional Justice Suhartoyo.
Also read:
Prosecutors Challenge Retirement Age Limit
Public Prosecutors Revise Petition on Retirement Age
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Court Hands Down Interlocutory Decision on Retirement Age of Prosecutors
Change of Retirement Age of Public Prosecutors Affects Family’s Finances
Govt Delays Expert Testimonies at Hearing for Prosecution Law
Classification of Prosecutors’ Ages an Open Legal Policy
Writer : Utami Argawati
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/21/2022 09:19 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.
Tuesday, December 20, 2022 | 18:50 WIB 697