Principal Petitioner and legal counsel Viktor Santoso Tandiasa (center) at the ruling hearing of the judicial review of the Constitutional Court Law and the Prosecution Law, Thursday (5/25/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire judicial review petition of 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 petition was filed by eight prosecutors—H. Irnensif, Zulhadi Savitri Noor, Wilmar Ambarita, I Wayan Danan Aryantha, Made Putriningsih, Mangatur Hutauruk, Zairida, and Eko Kuntadi. The ruling hearing for Decision No. 37/PUU-XXI/2023 took place on Thursday, May 25, 2023.
Reading out the Court’s legal considerations, Constitutional Justice Enny Nurbaningsih said the discharge of prosecutors who were 60 years old or more since December 31, 2021 must follow the retirement age limit as stipulated in the Prosecution Law. As such, since December 31, 2021, prosecutors who had reached 60 years of age or above entered into retirement according to their respective ages, with the highest age limit of 62 according to Article 12 letter c of the Prosecution Law. This, she said, applied for 5 years since the latest Prosecution Law took effect.
She added that point 2 in the Court’s Decision No. 70/PUU-XX/2022, which reads, “The provision of Article 40A of Law No. 11 of 2021, which implements a limit to the prosecutors’ retirement age as regulated in Article 12 letter c of Law No. 11 of 2021, is in force for five years since the Constitutional Court’s a quo decision is pronounced,” serves to give emphasis that the application of Article 40A in conjunction with Article 12 letter c of the Prosecution Law was delayed so that the latest legislation would apply since it went into effect. Therefore, Justice Enny said, the Court did not have any reason to declare the ruling applying retroactively as the Petitioners requested. That decision has not lead to the legal uncertainty due to its interpretation of Article 40A of the Prosecution Law, but what occurred was an issue in its implementation. Therefore, the Petitioners’ argument—that Article 40A of the Prosecution Law was in violation of Article 1 paragraph (3), Article 28D paragraph (1), Article 28G paragraph (1), and Article 28I paragraphs (2) and (4) of the 1945 Constitution—was legally groundless.
Also read: Provisions on Prosecutors’ Retirement Age Effective Five More Years
“Therefore, the implementation of Article 40A of the Prosecution Law must be based on the Constitutional Court Decision No. 70/PUU-XX/2022. Based on these legal considerations, the Court is of the opinion that the Elucidation to Article 10 paragraph (1) of the Constitutional Court Law, Article 47 of the Constitutional Court Law, and 40A of Law No. 11 of 2021 as has been delayed according to the interlocutory Decision No. 70-PS/PUU-XX/2022 and has been affirmed and declared valid in the Constitutional Court Decision No. 70/PUU-XX/2022, is actually not discriminatory, has not led to legal uncertainty, and does not eliminate the guarantee of protection, and does not take away the citizens’ dignity and honor as guaranteed by the 1945 Constitution [unlike] what the Petitioners alleged. Therefore, the Petitioners’ petition was not legally grounded in its entirety,” Justice Enny declared.
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At the preliminary hearing on Thursday, April 13, 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.
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.
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.
Thursday, May 25, 2023 | 20:03 WIB 102