Counsel Viktor Santoso Tandiasa (center) reading out the subject matter at the judicial review hearing of the Constitutional Court Law and the Prosecution Law, Thursday (4/13/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Seven prosecutors at the Attorney General’s Office—Zulhadi Savitri Noor, Wilmar Ambarita, I Wayan Danan Aryantha, Made Putriningsih, Mangatur Hutauruk, and Zairida—challenge the Elucidation to Article 10 paragraph (1) letter a and Article 47 of Law No. 8 of 2011 on the Second Amendment to Law No. 24 of 2003 on the Constitutional Court Law as amended by Law No. 7 of 2020 on the Constitutional Court as well as Article 40A of Law No. 11 of 2021 on the Prosecution Office. The preliminary hearing for case No. 37/PUU-XXI/2023 on Thursday, April 13, 2023 was presided over by Constitutional Justices Enny Nurbaningsih, Daniel Yusmic P. Foekh, and Constitutional Justice M. Guntur Hamzah.

The Elucidation to Article 10 paragraph (1) letter a of the Constitutional Court Law reads, “The decision of the Constitutional Court shall be final, that is, the decision of the Constitutional Court shall immediately obtain permanent legal force since it is pronounced and no legal remedies can be taken. The final nature of the Constitutional Court’s decision in this Law also includes binding legal force (final and binding).”

Article 47 of the Constitutional Court Law reads, “The decision of the Constitutional Court shall immediately obtain permanent legal force since it is pronounced at a hearing that is open to the public.”

Article 40A of the Prosecution Law 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).”

Through counsel Viktor Santoso Tandiasa, the Petitioners asserted that the Constitutional Court in Decision No. 70/PUU-XX/2022 had interpreted Article 40A of the Prosecution Law as having discriminated against prosecutors who were dismissed before a certain interlocutory decision and a final decision. The interlocutory decision, Tandiasa said, mentioned that the retirement age as regulated in Article 12 letter c of the Prosecution Law would be in force five years since the decision was pronounced.

“Actually, Article 40A of the Prosecution Law is transitional provisions [where] the retirement age of prosecutors is changed from 62 years in Article 12 letter c of the Prosecution Law, to 60 years,” he said in person at the panel courtroom alongside five of the petitioners.

He further said that for prosecutors who turned 60 when/after the decision was pronounced shall follow Article 12 letter c of the Prosecution Law, or be honorably discharged at 60 years old. This marked a difference with the retirement age of prosecutors who turned 60 before the decision was pronounced, which is 62 years.

The provisions shall be in force five years since Decision No. 70/PUU-XX/2022 was pronounced, or December 20, 2027. Meanwhile, the retirement age remains at 62 years until December 19, 2927. In practice, the retirement age is also counted since the Court’s interlocutory Decision No. 70/PUU-XX/2022 was pronounced on October 11, 2022. Therefore, following Circular Letter (SE) No. 1 of 2023 after the decision, prosecutors who have turned 60 who retired and whose employment rights were borne based on the interlocutory Decision No. 70/PUU-XX/2022 shall retire at 62 years. Consequently, due to the delay of retirement, their employment rights must be returned following statutory laws and regulations.

Concrete Case

Tandiasa revealed that based on the circular letter, Petitioners I, II, and III received different treatment from prosecutors who suffered the same loss but were honorably discharged after the interlocutory decision and the final decision No. 70/PUUXX/2022, as their employment rights had been restored. However, they were then legally discriminated against due to the Elucidation to Article 10 paragraph (1) letter a and Article 47 of Law No. 7 of 2020, where they did not receive protection over their loss of constitutional rights.

He also detailed that due to the enactment of Article 40A of the Prosecution Law, Petitioner IV failed to complete loan payments and was frequently visited by debt collectors as he was honorably discharged when he had not prepared for the loan payment instalments, which were previously automatically deducted from his salary and should be cleared when he retired at 62 years.

“However, he was suddenly forced into retirement at 60. It means that he must bear two years of loan payments without his salary, which he previously used to pay back the loan. The Petitioner would not have been impacted by Decision No. 70/PUUXX/2022 if his employment was reactivated so that his employment rights at his place of work could be returned until he turns 62. However, he is impacted by the discrimination due to the implementation of Decision No. 70/PUUXX/2022 because he had been honorably discharged before the interlocutory decision and the final decision. Thus, the rights of Petitioner IV could not return. This is due to the interpretation of the Elucidation to Article 10 paragraph (1) letter a and Article 47 of Law No. 7 of 2020 as well as Article 40A of Law No. 11 of 2021 in Constitutional Court Decision No. 70/PUUXX/2022,” Tandiasa explained.

Justices’ Advice

Constitutional Justice M. Guntur Hamzah stressed that the Petitioners need to strengthen their arguments on the unconstitutionality of the norms when explaining the background of the petition and the petitum. 

Next, Constitutional Justice Enny Nurbaningsih cautioned that because the norms had been petitioned and ruled, the Petitioners need to explain the difference between the petitions. She also asked them to explain the contradiction between the norms and the touchstone. “Howe you review past decisions must be explained comprehensively, as well as the appeal to the Court to change its decision to be retroactive. Make a sound argument related to the principle erga omnes,” she said.

Before adjourning the session, Constitutional Justice Enny Nurbaningsih announced that the Petitioners had 14 workdays to revise the petition and submit it to the Registrar’s Office on Wednesday, April 26 at 13:00 WIB. 

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Muhammad Halim
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.

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