Expert: Tenure of KPK Commissioners against Legal Ideal
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State administrative law expert Emanuel Sujatmoko after giving testimony at the material judicial review hearing of Law No. 19 of 2019 on the Corruption Eradication Commission, Monday (3/13/2023). Photo by MKRI/Ifa.


Monday, March 13, 2023 | 15:18 WIB

JAKARTA (MKRI) — For Corruption Eradication Commission (KPK) commissioners appointed based on the requirements referred to in Article 29 letter e of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law) before amendment cannot be applied equally to those who have not been appointed KPK commissioners, because equality only applies for matters that are in the same state and position.

The statement was made by state administrative law expert Emanuel Sujatmoko as an expert for the Petitioner at the fifth judicial review hearing of the KPK Law for case No. 112/PUU-XX/2022 on Monday afternoon, March 13, 2023.

KPK commissioners hold their position for four years and they can be reelected one time. “The tenure of KPK leaders is against the legal ideal on the tenures of state officials referred to in the 1945 Constitution,” he asserted.

As such, he asserted, the age limit of 50 years as referred to in in Article 29 letter e of the KPK Law must be interpreted to exclude those having been KPK commissioners. The provisions of Article 34 of Law No. 30 of 2002 is against the legal ideal on the tenures of state officials referred to in the 1945 Constitution.

Constitutional Justice Saldi Isra asked where in the 1945 Constitution is the legal ideal on the tenures of state officials. “How and where is the legal ideal on the tenures of non-structural state officials can be found in the 1945 Constitution? How do we know there is a legal ideal on these tenures when it is not in the Constitution?” he asked.

Emanuel said that while the 1945 Constitution does not talk about age requirements for state officials, they all hold their positions for five years. “This is an idea. I am referring to Professor Maria [Farida Indrati] that in legislation, an ideal is an idea, a feeling, a thought. There is an idea that state institution leadership works every five year. This is what is meant by that, Prof. Saldi. So, I drew a conclusion that is a legal ideal,” he answered.

Meanwhile, constitutional law expert Firdaus, who also testified for the Petitioner, said Article 29 letter e of Law No. 19 of 2019 has led to specific uncertainty, which according to logical reasoning is inevitably detrimental to the Petitioner’s constitutional rights as stipulated in Article 28D paragraph (1) of the 1945 Constitution, “Everyone is entitled to recognition, guarantees, protection, and fair legal certainty and equal treatment before the law.”

Firdaus asserted that although the Petitioner was not yet fifty years old, he could carry out the functions, duties, and authority of the institution responsibly, so the age limit of fifty years cannot be an objective standard to determine the quality and qualification of a person to develop responsibility. Furthermore, other strategic positions have lower age limits, such as forty years for presidential ticket candidates, thirty-five years for BPK (Audit Board) candidates, and twenty-one years for DPR (House of Representatives) and DPD (Regional Representatives Council) candidates.

“Therefore, the implementation of an age requirement of at least fifty years in Article 29 letter e of Law No. 19 of 2019 not only creates an issue of legal uncertainty but also has an impact on discrimination against the age group under fifty years, which is contrary to Article 28I paragraph (2) of the 1945 Constitution, ‘Everyone shall be entitled to be free from any discriminatory treatment on any basis and obtain protection against such discriminatory treatment,’” he added.

Firdaus also emphasized that the KPK, which is among the executive with plural and collective collegial positions, should at least have the same minimum age requirement as that for presidential and vice-presidential candidates. The KPK’s leadership’s high minimum age requirement has restricted many citizens from participating in government as guaranteed in Article 28D paragraph (3) of the 1945 Constitution, “Every citizen shall be entitled to obtain equal opportunity in government.”

Also read:

Nurul Ghufron Challenges Provision on Age Limit of KPK Leaders

Nurul Ghufron Revises Petition against Provision on Age Limit of KPK Leaders

Age Requirement for KPK Leaders an Administrative Code

Govt: Age Requirement for KPK Leaders Necessary

Corruption Eradication Commission (KPK) deputy chairman Nurul Ghufron, who filed the petition No. 112/PUU-XX/2022, was appointed after meeting the qualifications based on Law No. 30 of 2002, or the first KPK Law. However, the enactment of Article 29 letter (e) of the Law of the Republic of Indonesia No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission has reduced his constitutional rights. It originally required that a KPK leader be at least 40 years old and 65 years old at most. After the amendment, the age limit is at least 50 years and 65 years at most, thus restricting the Petitioner, who is not yet 50 years old, from seeking appointment for the second term. This, he argues, is contradictory to Article 34 of Law No. 30 of 2002.

In his petition, the Petitioner argued that he had been restricted from seeking re-appointment as a KPK leader. He believes the age limit for government positions necessitates maturity. Thus, he believes that a person who has experience in a position must also be deemed “legally qualified” to fill that vacancy. He argues that he has lost his right to equality in government, to fair legal certainty and equality before the law, and to obtain a job with fair treatment, due to the enactment of Article 29 letter (e) of the KPK Law. He requested that the Court declare the article conditionally unconstitutional and not legally binding as long as there is no condition “having experience as a KPK leader.”

Author         : Utami Argawati
Editor          : Lulu Anjarsari P.
PR               : Raisa Ayudhita
Translator     : Yuniar Widiastuti (NL)

Translation uploaded on 3/14/2023 09:25 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.


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