The Petitioner, accompanied by his legal counsel, at the preliminary hearing of the judicial review of Article 26 paragraph (2) letter d and Article 70 paragraph (3) of Law Number 20 of 2023 concerning the State Civil Apparatus, Thursday (19/9/2024). Photo PR/Bayu

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JAKARTA, HUMAS MKRI - The Association for Elections and Democracy ( Petitioner I), the Committee for Monitoring the Implementation of the Regional Autonomy (Petitioner II), and Indonesia Corruption Watch (Petitioner III) filed a judicial review of Article 26 paragraph (2) letter d and Article 70 paragraph (3) of Law Number 20 of 2023 concerning the State Civil Apparatus (ASN Law) against Article 1 paragraph (3), Article 28D paragraph (1), and Article 28D paragraph (3) of the 1945 Constitution of the Republic of Indonesia to the Constitutional Court. The Preliminary Hearing of Case Number 121/PUU-XXII/2024 was held on Thursday, September 19, 2024, in the Plenary Courtroom.

Article 26 paragraph (2) letter d of the ASN Law states, “To exercise the authority as referred to in paragraph (1), the President delegates some of his authority to ministries and/or institutions that perform duties and functions in the field: .... d. supervision of the implementation of the Merit System”. Article 70 paragraph (3) of the ASN Law states, “The State Civil Apparatus Commission that exists at the time of the enactment of this Law shall continue to exercise its duties and functions until the enactment of the implementing regulations of this Law.”

Before the Panel of Justices was presided over by Justice M. Guntur Hamzah, accompanied by Justice Daniel Yusmic P. Foekh and Justice Ridwan Mansyur, legal counsel Shaleh Al Ghifari explained the subject matter of the petition. Petitioner I considered that removing ASN’s merit system, principles, code of ethics, and code of conduct supervision created legal uncertainty. It also removed independent supervision regarding the neutrality of the 2024 Simultaneous Regional Election organizer.

Shaleh added that Petitioner I saw this as an urgent matter that resulted in the weakening of the bureaucratic system, which is professional, has integrity, and follows meritocratic principles, so as to achieve good, professional, free of corruption, collusion, and nepotism governance. Hence, as a person concerned about democracy and bureaucratic reform especially related to the organization of clean and fair elections, Petitioner I has his interest in filing the petition.

Meanwhile, as a supporter of regional autonomy, business development, central government, and the need for society’s freedom of expression, Petitioner II believed that the articles being reviewed have the potential to obstruct a free and just regional election organization. With the absence of independent supervision, civil servants are prone to be mobilized as partisans during elections. Hence, these practices should be prevented, tackled, and dealt with wisely.

Petitioner III opined that the removal of the merit system, civil servants' code of ethics and conduct, and independent supervision of the civil servants' neutrality would result in the civil servants’ prolonged partisan mobility practice. This practice has a political background and results in recruitment, promotion, or demotion that is politically motivated. It is far from the principle of meritocracy and good governance that is directly related to the goals and works of Petitioner III’s organization.

“For that reason, Petitioners requested the Court to declare the substantial of Article 26 paragraph (2) letter d of Law Number 20 of 2023 on the State’s Civil Apparatus contradicts the 1945 and has no legally binding power as long as it is not interpreted as, “To exercise the authority as referred to in paragraph (1), the President delegates some of his authority to ministries and/or institutions that perform duties and functions in the field: .... d. supervision on the implementation of the merit system, principles, basic values, code of ethics, and conducts of civil servants; to declare the substance of article 70 paragraph (3) of Law Number 20 of 2023 on the State’s Civil Apparatus contradicts the 1945 Constitution of the Republic of Indonesia and does not have legal binding power as long as it is not interpreted as, ‘State’s Civil Apparatus Commission exercises its duties and functions as stipulated on Article 26 paragraph (2) letter d’,” Dudy Agung Trisna conveyed the petitum of the petition.

Justices’ Advice

In his advice, Justice Daniel mentioned that related to the legal standing of the Petitioners, it is necessary to clarify the articles and paragraphs in the Articles of Association of the organization that reserves the right to file this petition in and out of court. Furthermore, Justice Ridwan, in his advice, said that the Petitioners need to add constitutional losses from the five parameters in the provision of constitutional losses so that they can be referred to one by one and compared with other countries.

“Is it possible that other countries have similar institutions and then do not exist but are revived, this is emphasized again in the argument of the constitutional loss of the Petitioners,” Ridwan explained.

Meanwhile, Justice Guntur gave a comment on the norms tested, adding that Article 26 paragraph (2) letter d should be further complemented with the principles and code of ethics as part of KASN's duties. For this reason, it is necessary to elaborate on the KASN that has existed before, but then did not function and shifted to BKN.

“The problem needs to be explained why this new concept needs a SWOT analysis? Exactly which one is done because there are two organizations. So that the Court can get an idea that the need to reinstate the KASN is very urgent, if not KASN, the merit system will not work. So, this needs to be explored again,” explained Guntur.

Before closing the hearing, Justice Guntur said that the Petitioners were given 14 days to revise the petition. At the latest, the revision can be submitted on Wednesday, October 2, 2024, at 15.00 WIB to the Registrar's Office. (*)

Author: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Raisa Ayuditha Marsaulina

Translator: Rizky Kurnia Chaesario (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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