Hanter Oriko Siregar (Petitioner) conveying the petition at the preliminary hearing for the judicial review of the Manpower Law and the ASN Law, Monday (11/18/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Hanter Oriko Siregar, an attorney, has filed a material judicial review petition of Article 35 of Law No. 13 of 2003 on Manpower in conjunction with Article 37 of Law No. 20 of 2023 on State Civil Apparatuses (ASN). He believes the articles are in violation of Article 27 paragraph (1), Article 28D paragraph (2), Article 28H paragraph (2), and Article 28I paragraph (2) of the 1945 Constitution.

Article 35 paragraph (1) of the Manpower Law reads, “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies.” Article 37 of the ASN Law reads, “Every Indonesian citizen shall have the same opportunity to become an ASN employee after fulfilling the requirements.”

“The provision of Article 35 of Law No. 13 of 2003 on Manpower in conjunction with Article 37 of Law No. 20 of 2023 has allowed companies or private institutions or government agencies to set requirements for job applications arbitrarily without regard to the values contained in the Constitution,” Siregard said at the preliminary hearing for case No. 159/PUU-XXII/2024 on Monday, November 18, 2024.

The Petitioner questioned the requirement that candidates for civil servants (CPNS) for the Supreme Court (MA), the Prosecution Office of the Republic of Indonesia (Kejari), and the Corruption Eradication Commission (KPK) in 2024 must master a foreign language, especially English, as evidenced by a TOEFL score. He had failed to register for CPNS at these agencies, thus he claimed that his constitutional rights had been harmed.

He tried to take the TOEFL exam four times, but only scored 370 at the highest. He alleged that making English proficiency an absolute requirement for CPNS selection participants seems to glorify the foreign language rather than the national language.

The Petitioner said that the articles challenged do not provide clear legal boundaries and concrete legal provisions, causing legal uncertainty that has led to many perceptions or interpretations that could allow employers, in this case government and private agencies, to determine job requirements freely. With such a freedom, it is very possible for them to set discriminatory requirements that are contrary to the 1945 Constitution.

In his petitum, the Petitioner requests that the Court declare Article 35 paragraph (1) of the Manpower Law conditionally unconstitutional and not legally binding if not interpreted as, “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies with the Indonesian language as the mandatory medium as long as the employers/Companies are located within the territory of Indonesia.” He also wishes that Article 37 of the ASN Law be interpreted as, “Every Indonesian citizen shall have the same opportunity to become an ASN employee after fulfilling requirements that are not unconstitutional.”

Justices’ Advice

The preliminary hearing for the case was presided over by Constitutional Justices M. Guntur Hamzah (panel chair), Anwar Usman, and Daniel Yusmic P. Foekh. Justice Foekh stated that the reasons for the Petitioner’s petition had not shown the contradiction between Article 35 of Law No. 13 of 2003 on Manpower in conjunction with Article 37 of Law No. 20 of 2023 on State Civil Apparatuses (ASN) and the touchstones.

“The Petitioner’s argument is only based on a concrete case, where you wish that the [requirement of] TOEFL certificate in government and private institutions be abolished,” he said.

Meanwhile, Justice Anwar showed his support for the Petitioner’s wish to become a judge. He believes the Petitioner could reach the minimum TOEFL score required by the institutions. He also advised the Petitioner to study the Decision No. 35/PUU-XXII/2024 on the definition of discriminatory job vacancies as a reference.

Before adjourning the session, Justice Guntur announced that the Petitioner would have 14 days to revise the petition. The revised softcopy or hardcopy of the petition must be received by the Court by Monday, December 2, 2024.

Author         : Mimi Kartika
Editor          : Lulu Anjarsari P.
PR               : Raisa Ayuditha Marsaulina
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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