The judicial review hearing of Law No. 7 of 2020 on the Constitutional Court to hear the House of Representatives, Wednesday (2/15/2023). Photo by MKRI/Ilham W. M.

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Wednesday, February 15, 2023 | 15:10 WIB

JAKARTA (MKRI) — Even both are holders of state judicial power as stipulated in Article 24 of the 1945 Constitution, the retirement ages for registrars in the Constitutional Court (MK) and the Supreme Court (MA) differ. The reason is the process of filling the positions in both courts, said House of Representatives (DPR) Commission III member Taufik Basari at the material judicial review of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court on Wednesday, February 15, 2023 in the plenary courtroom.

Taufik explained that Supreme Court registrars come from among judges as stipulated in Article 20 of Law No. 3 of 2009 on the Supreme Court. The provision of retirement ages follows that of the chief or deputy chief judge of the high court, high court judges, and district court judges. Thus, he added, the retirement ages for registrars in the Supreme Court is 67 years for chief registrars and deputy registrars following that in the high court, and 65 for substitute registrars following district court judges.

Meanwhile, he added, the Constitutional Court registrars are stipulated in Article 2 paragraph (1) in conjunction with Article 3 of Presidential Decree No. 49 of 2012, which states that registrars of the Constitutional Court are functional positions that are assessed through credit scores. Thus, they are state apparatuses (ASN) or civil servants (PNS) and hold the same position as similar functional positions, i.e. registrars of the district court, religious court, and administrative court.

“Currently, the law determines that Supreme Court registrars come from high-ranking judges, whose retirement age is 67, which automatically limits the retirement age for Supreme Court registrars at 67 according to their retirement age as high-ranking judges. Therefore, to determine the retirement age for Constitutional Court registrars, the Court needs to stipulate a fair retirement age for Constitutional Court registrars, which is 62 according to the retirement age for registrars who are not career judges. In the future, lawmakers need to determine the requirements for prospective Supreme Court and Constitutional Court registrars,” he said.

Changing Legal Opinion

Taufik explained that if the Petitioners wanted the retirement age for registrars to change, they could be said to want a change in the Constitutional Court’s legal opinion or stance in Decision No. 34/PUU -X/2012. “However, in the a quo petition, the Petitioners did not explain that there was an urgency or extraordinary circumstances that could change the justices’ stance on the decision,” he said.

Taufik also said Article 7A paragraph (1) of the Constitutional Court Law is part of lawmakers’ open legal policy in lawmaking. The House, he said, supported the Decisions No. 51, 52, and 59/PUU-VI/2008, No. 010/PUU-III/2005, and No. 39/PUU-VIII/2010. “Therefore, apart from being an open legal policy by lawmakers, it is not contrary to the 1945 Constitution,” he added.

In Revision of Constitutional Court Law

Constitutional Justice Saldi Isra responded that both the Supreme Court Law and the Constitutional Court Law do not concern the Registrar’s Office in the judiciary. “Because there are two branches of the judiciary, that is, the Supreme Court Law and the Constitutional Court. Not to mention, the Constitutional Court is being revised. It’s not wrong to expand (the revision) to include the matters being discussed today,” he said.

He advised that the House redesign the registrars in the Constitutional Court. He hoped that this sort of issue would not be left to the executive. “Do not let this sort of issue become the executive’s prerogative because it would jeopardize the independence of the judiciary,” he added.

Meanwhile, Constitutional Justice Enny Nurbaningsih questioned the registrars’ functional position in the judicial administrative function in the Constitutional Court Law. She believed that it was important that the justices were informed of the background of this position.

“Have functional positions within the judiciary been discussed relating to the Constitutional Court Law? what are functional positions actually? Can it be affirmed? Then, there are a variety of functional positions, while we know that in [the Government Regulation/PP], functional positions are senior, middle, and junior. How was it reverted to registrars? Are the arrangement’s different? Please explain,” she said.

Also read:

Deputy Registrars Challenge Provision on Retirement Age of Registrars

Deputy Registrars Revise Petition on Retirement Age of Registrars

Govt Unprepared to Testify, Hearing on Constitutional Court Law Delayed

The preliminary hearing for the case No. 121/PUU-XX/2022 took place on Tuesday, December 13, 2022. Syamsudin Noer and Triyono Edy Budhiarto (Petitioners I and II), civil servants (PNS) who work as case registration administrator and deputy registrar at the Constitutional Court (MK). They 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 conveyed the legal fact relating to the difference between the retirement ages of the registrars in the Constitutional Court and the Supreme Court and asserted that the Supreme Court and the Constitutional Court are equal, as referred to in the 1945 Constitution, and have similar sources of jurisdiction.

In the petition, the Petitioners argued that their constitutional rights had been harmed. When becoming a substitute registrar, a deputy registrar, or a chief registrar in the secretariat-general of the Constitutional Court in the future, Petitioner I will not be able to retire at the same age as those in the Supreme Court. meanwhile, Petitioner II will not be able to retire at the same age as deputy registrars in the Supreme Court. Similarly, if he becomes a chief registrar in the future, he will not be able to retire at the same age as the chief registrar in the Supreme Court. This is despite the Supreme Court and the Constitutional Court being judicial institutions that have equal positions according to Article 24 paragraph (2) of the 1945 Constitution.

The Petitioners believe the norm had discriminated against them on the matter of retirement age. Therefore, they requested that the Court declare Article 7A paragraph (1) of the Constitutional Court Law unconstitutional and not legally binding if interpreted to mean that chief registrars and deputy registrars retire at 67 and substitute registrars at 65.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 2/16/2023 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.

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