Constitutional Justice Wahiduddin Adams chairing the preliminary judicial review hearing of Law No. 14 of 2008 on Public Information Openness, Wednesday (10/18/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Rega Felix, an advocate, challenges Article 18 paragraph (2) of Law No. 14 of 2008 on Public Information Openness (KIP Law) to the Constitutional Court (MK). The preliminary hearing for case No. 132/PUU-XXI/2023 was presided over by Constitutional Justices Wahiduddin Adams, Enny Nurbaningsih, and Daniel Yusmic P. Foekh on Wednesday, October 18, 2023.

Article 18 paragraph (2) of the KIP Law reads, “Not included as exempted information as referred to in Article 17 letter g and letter h, provided that, inter alia: a. the party whose secret being disclosed grants written consent: and/or b. the disclosure is in relation to a person’s position in public offices.”

On site in the plenary courtroom, the Petitioner said that based on Article 4 of Law No. 27 of 2022 on Personal Data Protection (PDP Law), personal data is divided into specific and general personal data. Specific personal data includes health and information data, biometric data, genetic data, criminal records, children’s data, personal financial data, and/or other data in accordance with statutory provisions. But, Article 18 paragraph (2) of the KIP Law excludes personal data in the form of the family history and records, the results of evaluations related to a person’s capabilities, intellectuality, and competency recommendations, and/or records on a person’s personality related to formal and non-formal education as contained in Article 17 letter h of KIP Law for persons in public offices.

He revealed his experience applying for a public office at Bank Indonesia and being declared unqualified. He then asked for the list of applicants, his evaluation results, and the results of his health assessment, which the organizing committee refused. He was only given the results of his health assessment, so he could not obtain a right to refute the public information. “There are multiple interpretations of the causality between Article 18 paragraph (2) of the KIP Law and the Petitioner’s constitutional loss, because the exam results which the Petitioner requested were excepted from public information,” he said.

Therefore, in his petitum, the Petitioner requested that the Court declare the phrase ‘a person’s position in public offices’ in Article 18 paragraph (2) of Law No. 14 of 2008 on Public Information Openness unconstitutional and not legally binding as long as it is not interpreted as ‘including a list of names of participants in an open selection process in the context of filling in public offices,’” the Petitioner said.

Constitutional Loss

Constitutional Justice Enny advised the Petitioner to provide strong arguments on his constitutional losses, especially on the applicability of the norm and the violation of his constitutional rights. “Indeed, the issue is the phrase ‘a person’s position in public offices.’ If it is declared conditionally constitutional, will this narrow the meaning of this norm or not. Please observe once more so in challenging the constitutionality of a norm or its application, complaint can be made to relevant parties. This must be examined thoroughly to determine whether this individual problem is a matter of the constitutionality of the norm, which may be experienced by other individuals aside from the Petitioner,” she explained.

Next, Constitutional Justice Foekh advised the Petitioner to show the conflict between the norm and the 1945 Constitution. He added that the Petitioner can study the Constitutional Court Decision No. 133/PUU-VII/2009 to understand the article challenged in this petition.

At the end of the hearing, Constitutional Justice Wahiduddin informed the Petitioner that he would have 14 workdays to revise the petition and to submit it no later than Tuesday, October 31, 2023 at 09:00 WIB to the Registrar’s Office.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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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