Petitioner Hasanuddin Rahman Daeng Naja at the ruling hearing of the judicial review of Law No. 41 of 2004 on Waqf, Wednesday (8/30/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) decided to reject the judicial review petition of Article 56 of Law No. 41 of 2004 on Waqf at a ruling hearing for Decision No. 72/PUU-XXI/2023 on Wednesday, August 30, 2023 in the plenary courtroom. The petition was filed by Hasanuddin Rahman Daeng Naja, who requested that members of the Indonesian Waqf Board be appointed for five years instead out three years.

Alongside the other eight constitutional justices, Chief Justice Anwar Usman delivered the Court’s legal opinion, in which the Court explained the different tenures of members of the Indonesian Waqf Board (BWI), the National Zakat Board (BAZNAS), and the Hajj Fund Management Agency (BPKH). The Court held that all three are important institutions since their objectives, functions, and authority cannot be exercised by any existing main state organs or auxiliary state organs. Therefore, it is the legislature’s prerogative to determine their terms of office in accordance with the needs of the institutions or organs in the regulation on their formation.

Therefore, there was no constitutionality issue to the norm since the difference was not based on “religion, tribe, race, ethnicity, group, strata, social status, economic status, sex, language, or political beliefs,” which is stipulated in Article 1 point 3 of Law No. 39 of 1999 on Human Rights.

“Therefore, the Court asserts that the Petitioner’s argument that Article 56 of Law No. 41 of 2004 was discriminating and not legally justifiable,” said Constitutional Justice Enny Nurbaningsih delivering the Court’s opinion.

The Petitioner’s assertion on his restricted right as he did not have equal opportunity in government since the party’s chairperson position was not five years did not have anything to do with Article 56 of the Waqf Law since the different tenures in those three institutions did not restrict Indonesian citizens from having equal opportunity in government. In addition, it also did not restrict service to the state in developing the nation’s waqf.

The Court holds that the regulation on term of office does not correlate with the position of any institution, body, or organ, nor does it correlate with the quality of civil service, so it does not exclude any Indonesians from equal opportunity in government. Quite the contrary, such distinction gives citizens choice of legal certainty to determine the length of their civil service. Different terms of office in institutions such as BWI, BAZNAS, and BPKH cannot be said to have violated constitutional rights or be unconstitutional since they were set according to their legal bases, based on the needs of the respective institutions. Therefore, the Court holds that the Petitioner’s argument that Article 56 of Law 41 of 2004 in violation of Article 28D paragraph (3) and Article 28I paragraph (2) of the 1945 Constitution was legally groundless.

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The Petitioner is a member of the central Indonesian Waqf Board (BWI).

Article 56 of the Waqf Law reads, “The members of the Indonesian Waqf Board shall be appointed for a term of 3 (three) years and can be reappointed for 1 (one) more term.”

At the preliminary hearing on Tuesday, July 25, the Petitioner, who attended the hearing on site, said the petition was a way to fight for the equality of the board to other non-ministry independent agencies within the state structure based on justice and equality as set in Articles 27 and 28 of the 1945 Constitution. The Petitioner believed the article was in violation of Article 7 of the 1945 Constitution, which stipulates that a government office shall take place for a period of five years.

“There is injustice, inequality, and discrimination relating to the three-year term for BWI members, while it is five years for other non-ministry independent agencies, such as the National Zakat Board, the Hajj Fund Management Agency, and 12 others including the KPK [(Corruption Eradication Commission)], whose term just be revised from 4 to 5 years based on the Constitutional Court Decision No. 112/PUU-XX/2022,” he said.

Therefore, in the petitum, the Petitioner requested that the Court declare Article 56 of the Waqf Law conditionally unconstitutional if not interpreted as “The members of the Indonesian Waqf Board shall be appointed for a term of 5 (five) years and can be reappointed for 1 (one) more term.” 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
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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