Hanter Oriko Sinaga (Petitioner) attending the ruling hearing for the judicial review of Law Law No. 13 of 2003 on Manpower, Friday (1/3/2025). Photo by MKRI/Panji.
JAKARTA (MKRI) — Special job requirements set by government and private institutions with equal opportunities in employment and accompanied by reasonable grounds are not necessarily a form of discrimination, the Constitutional Court (MK) ruled in Decision No. 159/PUU-XXII/2024, delivered by Constitutional Justice M. Guntur Hamzah on Friday, January 3, 2025. In the decision, the Court rejected the material judicial review petition of Article 35 paragraph (1) of Law No. 13 of 2003 on Manpower in conjunction with Article 37 of Law No. 20 of 2023 on State Civil Apparatuses (ASN), filed by Hanter Oriko Sinaga.
The Court realized that the Petitioner’s objection to Article 35 paragraph (1) of the Manpower Law is closely related to his concern of the necessity to take the TOEFL examination while not obtaining the expected results, causing him to be unable to meet the requirements for job applications in both government and private institutions. However, the Court also realized that it could not grant the Petitioner’s objection through the material judicial review of the Manpower Law because the actual norm of the Law itself is not unconstitutional.
“Such a policy is not within the Court’s authority and is also not a derivative of the norms of the Law that are against the 1945 Constitution of the Republic of Indonesia because the norm of the Law itself, as has been considered in sub-paragraph [3.14.2] above, is not in conflict with the 1945 Constitution of the Republic of Indonesia,” said Justice Guntur.
In addition, the Court held that a foreign language requirement in vacancies cannot be reproached as it is a self-development step for prospective workers, which embodies Article 28C paragraph (1) of the 1945 Constitution. Moreover, the Government has also provided programs for developing job seekers’ competencies.
“For this, the Government has actually provided programs for developing job seekers’ competencies,” Justice Guntur said.
Global Competition
Furthermore, Justice Guntur also referred to the Constitutional Court Decision No. 98/PUU-XIV/2018 regarding foreign language requirement in recruitment. He emphasized that any job recruitment that encourages the mastery of foreign languages is not a wrong policy it is an inevitable need in global competition.
“A policy that is intended to encourage the acquisition of foreign languages because of demands is not a wrong policy. In fact, even without such a policy, give today’s global competition in international relations, the ability to speak a foreign language (not just English) has become an inevitable need,” he said.
In addition, competence, maturity, experience and expertise, as well as mastery of foreign language skills with minimum degree of maturity and experience are prerequisites in job requirements. These requirements are aimed at helping the best prospective workers who have the qualifications and experience to improve and develop their knowledge, skills, discipline, work ethic, and attitude.
Moreover, foreign language requirement does not negate the validity of Indonesian as the official language or state language. This is because the ability to speak a foreign language does not eliminate the obligation to speak Indonesian as the official language as regulated by law. This means that mastering a foreign language only serves to support competence in the midst of global competition.
“Efforts to master foreign languages have no correlation with the position of Indonesian as an official language or state language. The ability of an Indonesian citizen to speak a foreign language does not eliminate their obligation to treat and use Indonesian as the state language or official language in accordance with statutory regulations,” Justice Guntur emphasized.
Also read:
Failing CPNS Test Due to Foreign Language Test, Attorney Challenges Manpower, ASN Laws
Petitioner Alleges Mandatory Foreign Language Proficiency in Civil Service Unconstitutional
The Petitioner challenged Article 35 paragraph (1) 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 believed the articles had been used as a basis for job requirements and caused acts that are against the Constitution and statutory legislation.
The Petitioner revealed that candidates for civil servants (CPNS) must master a foreign language, especially English, as evidenced by a TOEFL score. There is also an upper age limit of 27 to apply as ahli pertama (junior) public prosecutors at the Prosecution Office. He believes these requirements are in violation of Article 27 paragraphs (1) and (2), Article 28C paragraph (1), Article 28D paragraphs (1) and (2), Article 28H paragraph (2), and Article 28I paragraph (2) of the 1945 Constitution. He argued that the interpretation of Article 35 of the ASN Law has allowed government and private institutions to set requirements for job applications arbitrarily. These requirements, he stressed, could be discriminatory.
He requested that the Court declare Article 35 paragraph (1) of the Manpower Law conditionally unconstitutional and not legally binding if not be interpreted as, “Employers who need workforce may recruit by themselves the workforce they need or have them recruited through job placement agencies, without mandating foreign language proficiency as a job requirement, with the Indonesian language as the mandatory medium for information within the workplace, and with prohibition against the practice of withholding the employees’ diplomas as a job requirement, unless otherwise provided by laws and regulations.” He also wished that Article 37 be interpreted as, “Every Indonesian citizen shall have the same opportunity to become an ASN employee after fulfilling requirements on the condition that mandatory foreign language proficiency be prohibited for applying for civil service, unless otherwise provided by laws and regulations.”
Author : Ahmad Sulthon Zainawi
Editor : Lulu Anjarsari P.
PR : Raisa Ayuditha Marsaulina
Translator : Ryan Alfian/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.
Friday, January 03, 2025 | 23:29 WIB 138