The Petitioners’ legal counsels presenting the subject matters of the petition at the preliminary hearing of the judicial review of the National Education System Law, Tuesday (1/23/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — Law No. 20 of 2003 on the National Education System (Sisdiknas Law) is being materially challenged to the Constitutional Court (MK). The petition No. 3/PUU-XXII/2024 was filed by CSO Network Education Watch Indonesia (New Indonesia) and three individuals petitioners—homemaker Fathiyah, homemaker Novianisa Rizkika, and mother and civil servant (PNS) Riris Risma Anjiningrum.

The Petitioners challenge the phrase “compulsory education for basic education free of cost” in Article 34 paragraph (2) of the Sisdiknas Law. The article reads in full, “The Government and local governments shall guarantee the implementation of compulsory education at least for basic education free of cost.”

The preliminary hearing took place on Tuesday, January 23, 2024 with Constitutional Justices Enny Nurbaningsih (panel chair), Arief Hidayat, and Anwar Usman presiding. The Petitioners’ legal counsel Arif Suherman alleged that the phrase was multi-interpretive since only basic education in public schools are free of cost.

“The State should obligate itself to guarantee the fate of the Petitioners’ children’s education so that there is certainty that the they can complete their education at least for basic education in accordance with the law. In fact, many children drop out of school because parents cannot afford schooling, and many children are forced to work when they should have received basic education, and they join their parents begging in the streets,” Arif said.

He argued that free basic education only applies in public schools, not in private schools. As such, the phrase “compulsory education for basic education free of cost” in Article 34 paragraph (2) has created legal uncertainty.

“Forms of discrimination against children who attend basic education can be seen [the fact that] children who attending public schools receive basic education free of charge, while those in private schools are charged. Children may receive basic education in the private sector, not according to their wishes but due to zoning as well as the [limited] capacity of public schools. So, children who are not accepted in public schools are forced to go to private schools. However, many children drop out of school because of the cost, considering that basic education in the private sector is charged,” he said.

For this reason, in their petitum, the Petitioners asked the Court to declare the phrase “compulsory education for basic education free of cost” in Article 34 paragraph (2) of the Sisdiknas Law conditionally unconstitutional not legally binding if not interpreted as “compulsory education for basic education in public and private schools free of cost.” 

Justices’ Advice

Responding to the petition, Constitutional Justice Arief Hidayat said the Petitioners must be able to explain the contradiction between Article 34 of the Sisdiknas Law and Article 31 paragraphs (1) and (2), Article 28B paragraph (2), Article 28C paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. “Your description is incomplete because if there are so many consequences, if they are used as the basis, then what are the contradictions? There will be a lengthier description of the contradiction if we take the philosophical approach. There are theoretical and empirical contradictions as well as comparative studies. In comparative studies, we can see that many Scandinavian countries and Western European countries have made education free from primary to tertiary levels. However, the concept in the Constitution and the welfare theory are different. The goals of the countries differ. Our Constitution and its Preamble say that Indonesia is not just a welfare state but a higher religious welfare state. This means that welfare is only external. Indonesia believes in constitutional welfare both physically and mentally,” Justice Arief explained.

The panel justices gave the Petitioners 14 days to revise the petition. The softcopy and hardcopy of the petition must be submitted to the Registrar’s Office by Monday, February 5, 2024.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Raisa Ayuditha Marsaulina
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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