The material judicial review hearing of Law No. 19 of 2019 on the Corruption Eradication Commission to hear the Petitioner’s expert, Monday (4/3/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Age requirements for positions in a state institution or government agency is a subjective arrangement for state/government officials. However, age limits should be based on reasons that are prudent, rational, and relevant to the requirements for the positions. Arrangements on age limit must be based on the principle of accuracy (principium praecisione).
The statement was made by administrative law expert W. Riawan Tjandra, which the Petitioner presented at the judicial review hearing of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law). The sixth hearing for case No. 112/PUU-XX/2022 took place on Monday afternoon, April 3, 2023.
He also said that when Article 29 point 5 of Law No. 30 of 2002 took effect, the Petitioner still met the lowest age requirement to register and successfully passed to become one of the KPK leaders. However, after the amendment to the provisions, he could potentially lose the right and opportunity to re-register if the selection process is carried out in accordance with the end of the tenure of KPK leaders for 2019-2023 term because he has not reached the age of 50.
“There are no sufficient and reasonable considerations (satis et ratonabili consideratione) for the change in the age limit, either in the relevant provisions, the elucidation, or academic papers related to the changed age limit. It is feared that the change in the age limit was made arbitrarily in the provisions of Article 29 letter e of Law No. 19 of 2019. In fact, principle changes in provisions in a law require adequate basic reasoning (basic causas) and could potentially have legal consequences for parties who would carry out rights and obligations based on these provisions,” he said before Chief Justice Anwar Usman and the other eight constitutional justices.
Riawan added that provisions on the period of the KPK leadership as stipulated in Article 34 of the KPK Law, which is four years and up to a one-time reelection, also differed from those for 12 leaders of other state commissions/institutions, which is five years.
“If there is no rational and adequate reason for the difference in tenure arrangements, it shows that the principle of equality (principium aequalitatis) is not applied in regulating the tenure of the KPK leadership,” he explained.
Provisions on KPK Leaders’ Age Limits
The Constitutional Court has had a stance that the 1945 Constitution does not specify a certain age limit for positions in governmental commissions/institutions, which is a legal policy of the legislatures, which can be changed at any time in accordance with current demands. This is entirely the legislatures’ authority and is not unconstitutional. However, in Decision No. 7/PUU-XI/2013, the Constitutional Court offered an additional view that the authority to regulate age limits could become a constitutional problem if it caused institutional problems, hampered the institutions’ performance, or harmed to the citizens’ constitutional rights. Regulations of age limits in a law must not conflict with Article 28D paragraphs (1), (2), and (3) of the 1945 Constitution.
Riawan argued that the increase of the lowest age limit for KPK leadership candidates from 40 years to 50 years lacked also lacked proper consideration and may actually lead to a violation of the principle of equality, compared to limits in other laws for other commissions/state institutions.
“If any KPK leaders have their constitutional and administrative rights disadvantaged in the nomination of KPK leaders, exclusion (exclusio principium) should be applied in order to remedy discrimination and inequality (distinctione et inaequalitate) in these special conditions. For general provisions that cause discrimination in special conditions there needs to be constitutional interpretation to restore constitutional and administrative losses for someone who (with no fault of their own) had their constitutional and administrative rights distorted due to changes in normative provisions that change the subjective criteria for implementing these provisions (interpretatio constitutionalis regularum quae iura subiectiva pervertunt necesse est ad aequalia iura restitui = constitutional interpretation of rules that distort subjective rights is needed to restore equality of rights),” he said.
Equality in Tenure Necessary
Riawan also explained that the regulation of the term of office for state commissions/institutions whose historical backgrounds are in the same context, although with different authority in accordance with the purpose of their establishment, should ideally also fulfill the principles of equality (principium similitudinis) and equality (aequalitas principium). The term of office for KPK leaders is determined in Article 34 of the KPK Law, which stipulates that KPK leaders hold office for four years and can be re-elected for only one term. This provision is different from that on the term of office for other state commissions/institutions.
In fact, Riawan explained, basic principles of performance-based budgeting, which is the basis for state financial management in all public sectors, requires a medium-term expenditure framework with a medium-term perspective (five years). So, logically, the term of office for the highest leadership in all public sectors should also be set for five years so that their performance can be assessed effectively and objectively against the implementation of the budget to finance programs and activities in the DPIA of each public sector in accordance with the five-year term. Based on the MTEF principle, the entire medium-term planning system for ministries/agencies at the central government and for regional apparatus organizations in regional governments also uses a medium-term planning system that applies for five years.
Chief Justice Anwar Usman asked about the difference between the term of office of the KPK commissioners and the KPK supervisory board. “Just for comparison, according to [you], on the KPK Law, is the term of office of the KPK commissioners and the supervisory board one package, meaning that [they should be] at least the same term or how [should it be] ideally?”
In response, Riawan explained that the supervisory board also has strategic plans. The leadership also has a plan to implement and they use the state financial public budget. “The period should also be five years to be equal to the requirement for effective implementation of this medium-term expenditure framework in the perspective of state financial law so that there is no weakening in performance analysis,” he explained.
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Expert: Tenure of KPK Commissioners against Legal Ideal
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 : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
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, April 03, 2023 | 14:11 WIB 200