Experts Say Additional Hajj Quota Arrangements By The Minister Of Religion Should Not Be Criminal

JAKARTA - The Minister of Religion's move to determine the distribution of additional hajj quotas should not be criminally charged. There are already rules that serve as guidelines so that the process is definitely not arbitrary.

"The authority of the Minister of Religion in determining additional quotas is attributable, given directly by law, so it is not an act against the law. The additional quota as regulated in Article 9 of the Law on the Implementation of Hajj and Umrah (PIHU) stands alone, is dynamic and can be managed flexibly as long as it is based on the principles of justice, proportionality, and public interest," said Unila Professor of Law, Rudy in a written statement, Wednesday, September 25.

Rudy explained the main point of his analysis based on several considerations. First, Article 8 of the Basic Quota Law gives the authority to the Minister of Religion to set the Indonesian Hajj quota every year, which is divided into regular Hajj and special Hajj.

Next, Article 9 of the Additional Quota Law, in Paragraph (1) affirms the minister's authority to determine additional quotas given by Saudi Arabia. Paragraph (2) provides space for technical arrangements through ministerial regulations, while still upholding the principles of transparency and justice.

"This article combines beschikking (concrete determination) and regeling (normative regulation)," he said.

The arrangement of the hajj quota in Law Number 8 of 2019 is a reflection of Indonesian constitutionalism, said Rudy. This means that there is a balance of external limitations or quotas from Saudi Arabia with internal needs.

Then Article 64 of the Special Hajj Quota Law stipulates a rigid allocation of 8 percent of the basic quota for special Hajj. This norm, said Rudi, guarantees distributed justice without disturbing the flexibility of the additional quota.

"In conclusion, the three main articles in the PIHU Law form a complementary normative framework: Article 8 brings legal certainty in determining the basic quota. Article 9 provides adaptive space for additional quotas. Article 64 guarantees distributive justice by locking down the proportion of special Hajj," he explained.

Therefore, Yaqut Cholil Qoumas is considered to have the authority to distribute as Minister of Religion. He is also considered not to have committed an unlawful act in determining the number of additional quotas.

"With this legal construction, the policy of the Minister of Religion regarding the determination of additional quotas cannot be called against the law. The most important thing is to ensure that the safety, comfort, and rights of the congregation remain the main priority in organizing the pilgrimage," concluded Rudy.