Legal counsel Haris Manalu conveying revisions to the material judicial review petition of Law No. 4 of 2016 on Public Housing Savings, Wednesday (8/21/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Law No. 4 of 2016 on Public Housing Savings (Tapera Law) on Wednesday, August 21, 2024. The second hearing for the petition filed by The Confederation of All Indonesian Labor Unions (KSBSI) was for presenting the revisions to petition No. 96/PUU-XXII/2024.

Legal counsel Haris Manalu conveyed the revisions, such as the Petitioner’s profile with Article 8 paragraph (1) of the confederation’s statute/bylaws, which applies in 2023–2027, so the president and secretary-general are authorized to represent the confederation in and out of court. The Petitioner had also affirmed the elaboration of its constitutional loss due to the enforcement of the norms being petitioned. Manalu said the Tapera Law has been in effect since March 24, 2016 as mentioned in Article 68 of the Government Regulation (PP) No. 25 of 2020. The article states that employers must register their workers for the public housing savings seven years after the enactment of the provision, so it is not inaccurate to say that the Tapera Law has not yet taken effect.

“Based on Article 68 of PP No. 25 of 2020, the statement ‘at the latest’ means that by May 20, 2027 this norm will apply to the Petitioner. Although at the time this petition was registered with the Constitutional Court, no employers had registered their workers as Tapera participants because it was very burdensome on the workers and employers’ finances. However, if employers do not register after May 20, 2027, the Government has a legal basis to impose sanctions by suspending and/or revoking business or company licenses as per Article 72 paragraph (1) letters e and f of Law No. 4 of 2016, thus the impact in the form of worker layoffs will be even more rampant,” Manalu said.

Discriminatory

The Petitioner also alleged that based on Article 68 of PP No. 25 of 2020, the provision applies since May 20, 2027 to workers of private companies. Workers of state- and region-owned enterprises (BUMN and BUMD) will not be subjected to it, as per Article 7 letter g of PP No. 25 of 2020. The Petitioner also explained that the enforcement of Law No. 4 of 2016 differs from that of Law No. 1 of 2023 on the Criminal Code (KUHP). Article 624 of Law No. 1 of 2023 states that said Law goes into effect three years since it was promulgated.

“This means that if a judicial review petition is filed against a norm in Law No. 1 of 2023 now or within this year, the petition will be declared premature because the Law will only come into force on January 2, 2026 in accordance with Article 624 of Law No. 1 of 2023. Because of the enforcement of the norm being reviewed, the Petitioner could potentially suffer a loss as stated by Article 28D paragraph (2), Article 28I paragraph (2), and Article 34 paragraph (1) of the 1945 Constitution,” said Manalu before Chief Justice Suhartoyo (panel chair) and Constitutional Justices Daniel Yusmic P. Foekh and M. Guntur Hamzah in the plenary courtroom.

Also read: Labor Unions Confederation: Mandatory Housing Savings Burden Laborers, Independent Workers

At the preliminary hearing on Tuesday, August 6, the Petitioner claimed that Article 7 paragraph (1), Article 9 paragraphs (1) and (2), Article 16, Article 17 paragraph (1), Article 54 paragraph (1), and 72 paragraph (1) of the Tapera Law are in violation of Article 28D paragraph (2), Article 28I paragraph (2), and Article 34 paragraph (1) of the 1945 Constitution. It argues that the wages of independent workers/laborers are very low and even insufficient to afford a decent life. However, they are required to pay substantial social security contributions including Tapera, which overlaps with employment BPJS (social security). In addition, workers are obligated to participate in Tapera and employers are obligated to pay Tapera deposits, but only participants who do not own a house are entitled to this housing financing benefits. In addition, Tapera is not mandatory for workers/laborers and employers, making the norms unfair and/or discriminatory. Therefore, in the petitum, the Petitioner request that the Court declare Article 7 paragraph (1), Article 9 paragraphs (1) and (2), Article 16, Article 17 paragraph (1), Article 54 paragraph (1), and 72 paragraph (1) of the Tapera Law unconstitutional.

Author         : Sri Pujianti
Editor          : Lulu Anjarsari P.
PR              : Fauzan Febriyan
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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