Advisor for Politics and Law of the Ministry of Administrative and Bureaucratic Reform Muhammad Imanuddin representing the Government to testify at the material judicial review hearing of Law No. 7 of 2020 on the Constitutional Court, Monday (3/6/2023). Photo by MKRI/Ifa.
Monday, March 6, 2023 | 13:37 WIB
JAKARTA (MKRI) — Retirement age is the legislatures’ open legal policy, which may be changed if there is a need for it and following the types, specifications, and qualifications of the positions, said an advisor for Politics and Law of the Ministry of Administrative and Bureaucratic Reform Muhammad Imanuddin at the material judicial review hearing of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court on Monday, March 6, 2023 in the plenary courtroom. The case No. 121/PUU-XX/2022 was filed by Syamsudin Noer and Triyono Edy Budhiarto (Petitioners I and II), civil servants (PNS) who work as a case registration administrator and a deputy registrar at the Constitutional Court (MK).
“The retirement age of chief registrars, deputy registrars, and substitute registrars in the Constitutional Court is regulated in the Judicial Law following the types, specifications, and qualifications [of the positions] in Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court,” he said before Chief Justice Anwar Usman and the other eight constitutional justices.
Constitutional Court Law Provides Legal Certainty
Imanuddin asserted that the retirement age’s regulation in Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court shows recognition, guarantee, protection, and fair legal certainty as well as equality before the law. The Government also believes that the retirement age for registrars in the Constitutional Court had been determined by the legislatures based on the Constitutional Court’s legal considerations in Decision No. 34/PUU-X/2012. As such, the Constitutional Court’s registrars’ retirement ages following Article 7A paragraph (1) of Law No. 7 of 2020 were rational and fair.
“Similarly, the retirement age of chief registrars, deputy registrars, and substitute registrars in the Constitutional Court at 62 years, which is not the same as that of registrars in general courts, religious courts, and state administrative courts at the first and appeal levels, is not discrimination [that can be used] as a basis for constitutional impairment, so the provisions of Article 7A paragraph (1) is not against the 1945 Constitution,” he stressed.
Different Qualifications
Imanuddin emphasized that the Supreme Court and the Constitutional Court are executors of the judicial power, who are equal, but the Petitioners should not claim that the different legal norms applied to the two indicate constitutional rights and are in violation of the 1945 Constitution. In the legal considerations for Decision No. 34/PUU -X/2012, the Constitutional Court clearly stated that reason why the Constitutional Court’s registrars’ retirement age was set to match that for the registrars in the general courts, religious courts, and state administrative courts at the first and appeal levels was because the positions were not occupied by judges. Meanwhile, Supreme Court registrars are former high court judges, whose retirement age is 67.
The Government asserted that the Petitioners could not make a surface-level comparison between registrars in the Supreme Court and the Constitutional Court to show discrimination, since registrars in the Supreme Court are former high court judges while those in the Constitutional Court are civil servants. Therefore, the Petitioners had not made any argument to prove that Article 7A paragraph (1) of Law No. 7 of 2020 was unconstitutional.
“We would also like to add that the Supreme Court Law does not regulate in detail the retirement age of registrars. Similarly, Law No. 49 of 2009 on General Courts does not regulate the retirement age if registrars in the Supreme Court, but only stipulates that the chief judge, deputy chief judge, and judges of the courts shall be dismissed if they have reached the age of 65 for the chief judge, deputy chief judge, and judges of district courts and 65 for the chief judge, deputy chief judge, and judges of high courts,” Imanuddin stressed.
In addition, registrars in the Constitutional Court and the Supreme Court have different qualifications. In the Supreme Court, based on Law No. 3 of 2009 on the Supreme Court, registrars must be former judges. In contrast, registrars in the Constitutional Court are state civil apparatus (ASNs) with functional positions (jabatan fungsional), who are given additional duties or may be equal to structural positions or occupy high leadership positions (JPT). However, what may be equalize are financial rights and facilities, not the positions entirely.
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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.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/6/2023 15:04 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, March 06, 2023 | 13:37 WIB 499