Justice M. Guntur Hamzah reading out dissenting opinion during Decision Pronouncement Hearing of Judicial Review of Law Number 23 of 1999 on Bank of Indonesia at Plenary Courtroom, Thursday (26/09). Photo by MKRI/Ifa.

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JAKARTA, MKRI—The Constitutional Court (MK) dismissed the petition in case number 80/PUU-XXII/2024 on judicial review of Article 44 paragraph (1) of Law Number 23 of 1999 on Bank of Indonesia (BI Law). The petition was filed by Rega Felix, who wished the selection system in Bank Indonesia not to depend solely on the discretion of the Bank of Indonesia’s Board of Governors but to ensure that it is open and transparent.

The Petitioner argued that Article 44 paragraph (1) of the BI Law was too simple, so it appears to give freedom to the Board of Governors to arrange the system without any specific boundaries and regulations, which resulted in a closed selection system that enables to fail participants using physical instruments. However, according to the Court in its legal considerations, the Applicant is actually concerned with the implementing regulations of the authority of the Board of Governors, which may form Board of Governors Regulations to appoint BI employees based on the provisions of Article 44 paragraph (1) of the BI Law, whose provisions cannot be separated from the provisions of Article 44 paragraph (2) and paragraph (3) of the BI Law.

“Therefore, it is clear that the regulation of the recruitment of Bank Indonesia employees by the legislator has been handed over to the implementing provisions of the law, namely in the form of the Board of Governors Regulation, which is more related to the issue questioned by the Petitioner,” said Justice Arief Hidayat during the decision pronouncement hearing on Thursday, September 26, 2024, in the Plenary Courtroom.

The Petitioner wished that the provisions on Article 44 paragraph (1) of BI Law be interpreted that during recruitment, the Board of Governors shall announce the result of employee selection to the public to adhere to the principles of fairness, openness, accountability, and non-discriminatory. So it will be similar to the process of Civil Servants Candidate Selection (CPNS) as provided by Article 58 paragraph (3) of Law Number 5 of 2014 that it is transparent and accountable. Regarding the interpretation as requested by the Petitioner, the Court opines that it will be automatically applied to the selection process of BI employees.

Without intending to assess the legality of the Board of Governors Regulation on Human Resource Management, according to the Court, the Petitioner's request should have been addressed to the implementing regulations of the law. Therefore, Article 44 paragraph (1) of the BI Law does not require a more explicit and detailed formulation as requested by the Petitioner. If the Applicant's wish is accommodated, then Article 44 paragraph (1) of BI Law will potentially cause disharmony with Article 44 paragraph (3) of BI Law because Article A quo has delegated to further regulate the recruitment principles of BI employees.

The Petitioner deemed Article 44 paragraph (1) of BI Law reads, “Board of Governors appoint and dismiss Bank of Indonesia employees” contradicts the 1945 Constitution of the Republic of Indonesia. Rega Felix said that the provisions have become a legal basis for organizing the recruitment system in BI.

Furthermore, Rega Felix stated that the selection process in BI did not meet the general standards of other institutions that usually announced the selection process to the public. Instead, BI applied standards in foreign countries and did not prioritize the parameters based on the 1945 Constitution, which guarantees the constitutional rights of citizens. The selection process in BI differs from that of the CPNS recruitment system, which announces details on minimum qualifications and the selection process in all stages and provides an objection period.

These were not obtained by the Petitioner when he joined the BI selection process. It was suspected that Article 44 paragraph (1) and Elucidation of Article 44 paragraph (1) of the BI Law are oversimplified because they do not regulate a fair, transparent, and accountable selection system. This is unlike Article 58 paragraph (3) of Law Number 5 of 2014 on State Civil Apparatus (ASN Law), which is the legal basis for CPNS recruitment, which is a reference for derivative regulations that are more fair, transparent, and accountable.

Dissenting Opinion

On the other hand, Justice M. Guntur Hamzah expressed a dissenting opinion on this petition. Justice Guntur argued that the Court should grant the Petitioner's petition in part. One of the legal arguments to partially grant the petition submitted by Justice Guntur is that the principle of openness in the employee recruitment process is a manifestation of the principle of good governance which is increasingly emphasized in governance in the case of BI.

This openness is not only limited to fulfilling legal obligations, but is also the key to building public trust, improving the quality of human resources, and preventing common enemy practices such as corruption, collusion, and/or nepotism. Therefore, the recruitment announcement process shall not only be carried out/notified by sending a personal email to the participants/candidate employees but should also be announced openly through mass media or at least through Bank Indonesia's website/page with the inclusion of the results/score and ranking of each participant/candidate employee.

“Within the limits of reasonable reasoning, such a way can not only minimize the presumptions that develop in the general public, such as the presumptions of the Petitioner in the case a quo, but also further encourage, promote, and strengthen the principle of openness in a more meaningful way as a form of implementation of Bank of Indonesia's commitment in implementing the principles of good governance,” said Guntur.(*)

Author: Mimi Kartika
Editor: Lulu Anjarsari P.
PR: Fauzan Febriyan

Translator: Rizky Kurnia Chaesaio (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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