Ricky Donny Lamhot Marpaung (center) and his legal counsel attending the panel preliminary hearing for the judicial review of Law No. 4 of 2016 on Public Housing Savings, Monday (8/5/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Leonardo Olefins Hamonangan and Ricky Donny Lamhot Marpaung (Petitioners I and II), Indonesian citizens, have filed a judicial review petition of Law No. 4 of 2016 on Public Housing Savings (Tapera Law) to the Constitutional Court (MK). The panel hearing for case No. 86/PUU-XXII/2024 in the plenary courtroom was presided over by Constitutional Justices M. Guntur Hamzah (panel chair), Enny Nurbaningsih, and Ridwan Mansyur.

The Petitioners asserted that Article 7 paragraphs (1) and (2) and Article 72 paragraph (1) letter c of the Tapera Law are contrary to Article 28D paragraph (1) and Article 27 paragraph (2) of the 1945 Constitution.

Article 7 paragraph (1) of the Tapera Law reads, “Every employee and self-employed person who earns at least the minimum wage shall be obliged to become a participant.” Article 7 paragraph (2) reads, “Self-employed workers as referred to in paragraph (1) who earn below the minimum wage can become participants.” Article 72 paragraph (1) letter c reads, “Participants, Employers, BP Tapera, Banks/Financial Service Companies, Depository Banks, and Investment Managers who violate the provisions of Article 7 paragraph (1), Article 9 paragraph (1), Article 12, Article 14 paragraph (4), Article 18 paragraphs (1), (2), and (3), Article 19, Article 30, Article 64, Article 66, Article 67, paragraph (1), and Article 68 shall be subject to administrative sanctions in the form of: … c. publication of non-compliance committed by employers.”

Petitioner II said the mandatory Tapera drains low-income people, while the cost of living is getting higher and wages are deducted for BPJS and other costs. Petitioner I, a private employee, will have his salary deducted 3% for Tapera, thus adding to his financial burden.

The Petitioners argued that Article 7 paragraph (3) of the Tapera Law could lead to ambiguous parameter to determine who should participate in Tapera, such as whether it should start at the age on twenty or after one is married. The word “or,” the argued, is a legal loophole that could be used for unmarried workers to delay participation in the savings. This, Petitioner I asserted, means unfair treatment and legal uncertainty.

Meanwhile, Petitioner II who is an MSME businessman, asserted that due to the articles, he would have to allocate 3% from his income. He found sanctions of suspension and revocation of business license for non-complying businesspeople very burdensome and financially detrimental. The lack of both clear parameter and tiered sanctions on self-employed persons could potentially harm the constitutional rights of Petitioner II.

“The Petitioners’ concern is the potential constitutional impairment due to the Tapera being misappropriated or the difficulty of filing claims when [we] enter into retirement,” said Petitioner II.

Justices’ Advice

Constitutional Justice Enny Nurbaningsih advised the Petitioners to explain comprehensively the contradiction between the norms being reviewed and articles in the Constitution used as touchstone. “So, this reinforcement will harmonize the petitum and the posita. The Petitioners need also to make comparison of the enforcement of these norms or the public housing savings in other countries, so that the issue can be reviewed comprehensively,” she said.

Constitutional Justice M. Guntur Hamzah added that the Petitioners should pay attention to the contradiction of the norms being reviewed and the touchstone in the Constitution mentioned in the explanation of legal standing. “This posita feels like legal standing. Please revise it. Also review the petitums since a few could lead to legal uncertainty if the petition is granted,” he explained.

Before adjourning the hearing, Justice Guntur announced that the Petitioner would have 14 days to revise the petition and must submit a revised petition by August 19, 2024 at 13:00 WIB to the Registrar’s Office.

Author            : Sri Pujianti
Editor             : N. Rosi
PR                 : Fauzan 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.

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