Legal counsel Viktor Santoso Tandiasa conveying the petition’s subject matter at the preliminary hearing of the material judicial review of Law No. 34 of 2004 on the Indonesian Armed Forces, Thursday (9/7/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of Law No. 34 of 2004 on the Indonesian Armed Forces (TNI Law) on Thursday, September 7, 2023.
The case No. 97/PUU-XXI/2023 was filed by active and retired TNI officers: rear admiral Kresno Buntoro, Law Corps colonel Sumaryo, staff sergeant Suwardi, retired naval captain Lasman Nahampun, retired Law Corps colonel Eko Haryanto, and retired Special Corps second lieutenant Sumanto (Petitioners I-VI).
They challenge Article 53 of the TNI Law, which reads, “Officers shall carry out military service until a maximum age of 58 (fifty-eight) years for officers, and 53 (fifty-three) years for enlisted and non-commissioned officers.”
Before Chief Justice Anwar Usman (panel chair) and Constitutional Justices Suhartoyo and Daniel Yusmic P. Foekh, legal counsel Viktor Santoso Tandiasa stated that the Petitioners had directly and potentially experienced constitutional loss, which according to logical reasoning is inevitable. As a result, they did not obtain fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution, which is the legal principle pursuant to Article 1 paragraph (3).
In the posita, the Petitioners stated that the service of TNI officers following the a quo article greatly impacts the management of TNI personnel. Tandiasa said that although the retirement age of TNI officers has been ruled by the Court in Decision No. 62/PUU-XIX/2021, in which it ordered lawmakers to revise the a quo norm, no change had been made.
“The Constitutional Court in Decision No. 62/PUU-XIX/2021 had firmly ordered lawmakers to implement change to Law No. 34 of 2004 by prioritizing its discussion in the near future, in order to provide legal certainty (vide legal opinion 3.13.2 paragraph 2). However, until today it has not been realized, as proven by the delay in the completion of discussion and approval of the revision to Law No. 34 of 2004,” he explained.
Tandiasa further explained that in Indonesia, 58 years of age is considered within the range of productive age. According to the Central Statistics Agency (BPS) data in 2020, the productive age group in Indonesia is 15-64 years of age. The Agency also reported that Indonesia’s Human Development Index (IPM) in 2022 is 72.91, an increase of 0.62 point compared to 70.29 the year before.
In addition, the life expectancy (UHH) of Indonesians in 2022 is 71.85, with an increase of 0.28 from 71.57 the year before. It indicates that Indonesia’s productive age has increased. Moreover, the retirement age in many countries is 60 years on average, while in Indonesia it is still 58 years.
Retirement Age of 60 Years
Tandiasa also asserted that the retirement ages for civil servants in Indonesia should be made equal because many legislations regulating their professions (Police, state civil apparatus/ASN, prosecutors, teachers/lecturers, judges) set the retirement age at 60 years, even 70 years at the highest.
Different retirement ages for civil servants are a clear indicator of unfair discrimination, since it signifies different treatments for things that should be treated equally as well as discrimination of rights of everyone (in casu TNI officers) to obtain equal opportunity in government. As such, this is in violation of Article 1 paragraph (3) and Article 28D paragraphs (1) and (3) of the 1945 Constitution.
“In order to enforce law and justice, and according to logical reasoning, there should be uniformity of the retirement age of civil servants with 60 years set to be the relevant, moderate, and constitutional limit for the discharge of civil servants (retirement) and award for their service for the state. However, the retirement age of 60 years can be applied conditionally or non-conditionally as imposed on the Police and state civil apparatuses,” Tandiasa explained.
The adjustment to the retirement age of TNI officers to up to 60 years would also show the state’s appreciation for TNI officers’ service while they were in productive age group and would guarantee their welfare for longer or at least on part with members of the Police force, state civil apparatuses, prosecutors, teachers/lecturers, and judges.
Based on those reasons, in the petitum, the Petitioners requested that the Court declare Article 53 of the TNI Law conditionally unconstitutional and not legally binding if not interpreted as “Officers shall carry out military service until a maximum age of 60 (sixty) years” or “Officers shall carry out military service until a maximum age of 60 (sixty) years for officers, and 58 (fifty-three) years for enlisted and non-commissioned officers” or “can be extended until 60 (sixty) years for all officers in the service of the National Armed Forces of Indonesia as long as their service is required for state defense purposes.”
In response, Constitutional Justice Suhartoyo highlighted the retired officers’ legal standing, especially their constitutional loss if the petition is granted. “What is the relevance for the retired officers?” he asked.
Meanwhile, Chief Justice Anwar Usman said the legal counsel had had much experience litigating in the Constitutional Court, so he did not have much to comment on the petition’s format. However, he advised the Petitioners to compare retirement age in countries around the world. “For example, 67 years in Denmark, 67 in Greece. On average it is 65 years,” he said.
Before adjourning the session, Chief Justice Anwar informed the Petitioner that they had 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Wednesday, September 20, 2023.
Author : Utami Argawati
Editor : Nur R.
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.
Thursday, September 07, 2023 | 16:23 WIB 250