Freddy T.H. Sinurat (one of the Petitioners) conveying the petition’s subject matters at the judicial review hearing of the PPSK Law, Tuesday (10/29/2024). Photo by MKRI/Panji.

---

JAKARTA (MKRI) — Freddy T.H. Sinurat and fifteen other private employees have filed a material judicial review petition of Article 161 paragraph (2) of Law No. 4 of 2023 on the Financial Sector Development and Reinforcement (P2SK Law) to the Constitutional Court (MK). The preliminary hearing for case No. 152/PUU-XXII/2024 was presided over by Constitutional Justices Daniel Yusmic P. Foekh (panel chair), M. Guntur Hamzah, and Ridwan Mansyur in a panel courtroom on Tuesday, October 29, 2024.

The Petitioners believe that Article 161 paragraph (2) of the PPSK Law, which reads, “Payment of pension benefits to participants and their widows/widowers or children shall be made periodically,” in violation of Article 28H paragraph (4) of the 1945 Constitution. They argued that the phrase “shall be made periodically” implies coercion and arbitrariness in the takeover of the Petitioners’ private property rights in the form of pension benefits. They believe the word “shall be” does not provide any choice.

However, the mandate concerns the Petitioners’ personal asset, which is deducted from their monthly salaries. Therefore, the provision in the norm has deprived the Petitioners of their right to choose and determine the payment method of their pension benefits. In addition, it has also deprived them of the right and opportunity to utilize the pension benefits in accordance with their and their families’ plans, aspirations, needs, and personal challenges.

Sinurat also said that the PPSK Law grants the OJK (Financial Services Authority) the authority to take over the Petitioners’ private property rights by setting a certain amount and conditions on the payment of pension benefits. However, Article 164 paragraph (2) of the PPSK Law limits the payment of first-time pension benefits in a lump sum: “Pension fund regulations may contain provisions that regulate the payment options for first-time pension benefits in a lump sum of a maximum of 20% (twenty percent) of the pension benefits.”

In other words, Sinurat added, Article 164 paragraph (2) reflects the arbitrary takeover of at least 80% of the Petitioners’ pension benefits. With reference to the Constitution, the participants’ consent is imperative with regard to the management and/or payment of pension benefits, as the benefits belong to them and are not state property. Unlike the mandatory employment BPJS insurance, pension benefits are optional and depends on the employer’s decision. As such, it would be unethical to regulate pension payment without taking into account the participants’ views, in this case the Petitioners.

“The Petitioners request to the constitutional justices to hand down a decision stating that Article 161 paragraph (2) of Law No. 4 of 2023 unconstitutional and not legally binding,” Sinurat said delivering the petitum.

Justices’ Advice

Constitutional Justice M. Guntur Hamzah advised the Petitioners to study the Constitutional Court Regulation (PMK) No. 2 of 2021 as guideline to drafting a petition, which consists of explanations on the Court’s authority, the petitioner’s legal standing, the reason for the petition (posita), and the petitum (request).

“There are sixteen petitioners in this case, so their legal standing and their constitutional rights violated due to the enforcement of the norm being petitioned must be explained. Please detail them one by one, which ones have legal standing, which ones do not. It is a challenge to revise this,” he explained.

Next, Constitutional Justice Ridwan Mansyur advised the Petitioners to affirm their reason to challenge the phrase “periodically” but not the choice on their legal issue. “This must be explained and proven. Otherwise, it would be difficult for the Court to grant the petition. Convince the Court of the unconstitutionality of the norm. This has not been shown on the 16-page petition,” he asserted.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioners to support their argument by comparing the implementation of the norm in other countries so the Court would be convinced of the Petitioners’ constitutional impairment. At the end of the session, Justice Foekh announced that the Petitioners would have 14 days to revise the petition and submit it to the Registrar’s Office by Monday, November 11, 2024. The Court will then schedule another hearing and notify the Petitioners.

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.

---