Legal counsels Muhammad Zen Al-Faqih and Ichsanty at the ruling hearing for the material judicial review hearing of Law No. 7 of 2020 on the Constitutional Court, Tuesday (6/27/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) granted part of the material judicial review petition No. 121/PUU-XX/2022 on Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court on Tuesday, June 27, 2023 at a ruling hearing in the plenary courtroom. The petition was filed by Syamsudin Noer and Triyono Edy Budhiarto, civil servants (PNS) who work at the Constitutional Court as a case registration administrator and a deputy registrar respectively.
“[The Court] declares Article 7A paragraph (1) of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court… contrary to the 1945 Constitution of the Republic of Indonesia and not legally binding if not interpreted as ‘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 through senior constitutional registrars, middle-rank constitutional registrars, intermediate constitutional registrars, and junior constitutional registrars with the maximum retirement age for chief registrars, deputy registrars, and substitute registrar of 65 (sixty-five) years of age’ following the retirement age limit for functional positions as set forth in legislation regarding state civil apparatus,’” said Chief Justice Anwar Usman alongside the other eight constitutional justices.
In its legal opinion, delivered by Constitutional Justice Enny Nurbaningsih, the Court asserted that the Constitutional Court Law and relevant implementing regulations emphasizes that chief registrar, deputy registrar, and substitute registrar in the Constitutional Court are functional positions that cannot be filled by judges, unlike in the Supreme Court. In order to fill in legal vacuum, the retirement age limits for chief registrar, deputy registrars, and substitute registrars in the Constitutional Court is adjusted to those in the general, religious, and state administrative courts based on the Constitutional Court Decision No. 34/PUU-X/2012. This choice was made since chief registrar, deputy registrars, and substitute registrars in the Constitutional Court are not judges, unlike in the Supreme Court.
However, Justice Enny added, the Court’s legal opinion in paragraph [3.13] in the aforementioned decision should not be understood as standalone, but relating to paragraph [3.14], which states that “based on rational considerations, the retirement ages of registrars of the Constitutional Court should be the same as those of the Supreme Court.” Therefore, the Court also emphasizes in its legal opinion on the a quo case that the legislatures need to set the same requirements for prospective registrars in the Supreme Court and the Constitutional Court. Nevertheless, although both institutions are executors of the judicial power, as considered, it turned out that the career path of Constitutional Court registrars is different and cannot be equated with that of registrars in the Supreme Court as argued by the Petitioners.
Other Functional Positions
Justice Enny added that other functional positions in the Constitutional Court aside from the registrar, such as expert assistant to constitutional justice (ASLI), archivist, and librarian, have clear career paths following statutory legislation. Therefore, for the sake of fair legal certainty and according to logical reasoning, there is no other choice than to declare registrar positions—which are emphasized by law as functional positions—as functional positions as set forth in the ASN (State Civil Apparatus) Law. Their levels are a such: (1) senior constitutional registrar, (2) middle-rank constitutional registrar, (3) intermediate constitutional registrar, and (4) junior constitutional registrar.
As such, the juridical and logical consequence of this, inpassing of these positions should not harm the career of existing chief registrar, deputy registrars, and substitute registrars.
Therefore, the retirement ages for existing chief registrar, deputy registrars, and substitute registrars in the Constitutional Court are 62 to 65 years. Functional positions recruited after the a quo decisions follows the functional career levels based on the ASN Law. Since the functional positons in the Constitutional Court’s Registrar’s Office are closed, the inpassing for those positions and other matters relating to the office must be adjusted immediately through a regulation of the chief constitutional justice based on a justice deliberation meeting.
Consequently, the Constitutional Court serves as the fostering agency of its registrars. In order to provide judicial support to the constitutional justices, the functional positions in the Court’s Registrar’s Office are chief registrar (equal to IA echelons), deputy registrars (equal to IIA echelons), and substitute registrars, who are inaugurated by the chief justice following the regulation of the chief justice.
Interpretation of New Norm
Justice Enny read out further that the Court had re-interpreted Article 7A paragraph (1) of Law No. 7 of 2020 so, consequently, it was important for it to emphasize the reinforcement of the Court’s supporting system, in casu expert assistants to constitutional justice (ASLI). At the beginning of the Court’s journey, expert staffs/advisers played the role of ASLI.
She added that ASLI is a new functional position previously occupied by the Court’s researchers, who have been fostered to provide the constitutional justices with substantive support in examining and adjudicating cases. Similar to the position of registrars, ASLI is a closed functional position that only exists in the Constitutional Court. Therefore, they must be provided with guarantee of legal certainty and welfare in order to be able to provide the justices with support following the change in their work system, which is more focused on the management of constitutional cases.
Although ASLI was not mentioned by the Petitioners, because it closely related to their argument, which boiled down to the registrars in the Court, in order to provide legal certainty and affirm the position, ASLI became part of the Registrar’s Office—who support the justices in judicial functions—not of the secretariat-general. In relation to that, ASLI’s fostering, which will be done by the Court, is further regulated with a regulation of the chief justice.
“Based on those legal considerations, it turned out that Article 7A paragraph (1) of Law No. 7 of 2020 has led to legal uncertainty. However, because the interpretation of Article 7A paragraph (1) of Law No. 7 of 2020, which the Petitioners requested, as is set forth in the verdict of the a quo case, unlike what the Petitioners requested in the petitum, the Petitioners’ petition is legally reasonable in part,” Justice Enny stressed.
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The Petitioners challenged 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 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 would not be able to retire at the same age as those in the Supreme Court. Petitioner II would not be able to retire at the same age as deputy registrars in the Supreme Court. Similarly, if he became a chief registrar in the future, he would not be able to retire at the same age as the chief registrar in the Supreme Court 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 also believed 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)
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.
Tuesday, June 27, 2023 | 14:16 WIB 332