Lawsuit Granted, Constitutional Court Decides Tapera Participation Is Not Mandatory

JAKARTA - The Constitutional Court (MK) decided that the participation of Public Housing Savings (Tapera) would no longer be an obligation following the granting of judicial review of Law Number 4 of 2016 concerning Tapera.

The Constitutional Court in the trial for the pronouncement of the verdict in the Plenary Court Session Room, Jakarta, Monday, stated that the heart article of the Tapera Law, namely Article 7 paragraph (1), contradicts the constitution so that it has juridical consequences for other articles in the law.

"Declaring Law Number 4 of 2016 concerning Tapera is contrary to the 1945 Constitution of the Republic of Indonesia and does not have binding legal force as long as no rearrangement is carried out, as mandated by Article 124 of Law Number 1 of 2011 concerning Housing and Settlement Areas," said Chief Justice of the Constitutional Court Suhartoyo reading the verdict Number 96/PUU-XXII/2024, confiscated by Antara.

In legal considerations, Deputy Chief Justice of the Constitutional Court, Saldi Isra, explained that legal relations between the community and financial institutions were built on the basis of mutual trust and agreement.

According to the Constitutional Court, the element of volunteerism and approval is an important foundation in the formation of laws and the context of fund storage.

Meanwhile, Article 7 paragraph (1) stipulates that every worker and independent worker who earns at least the minimum wage must be a Tapera participant.

Therefore, the Constitutional Court stated that the embedding of the term savings in the Tapera program caused problems for the affected parties, in this case the workers, because they were followed by the element of coercion by laying down the word 'mandatory' as Tapera participants.

"So conceptually, it does not match the characteristics of the true nature of savings because there is no longer a free will," said Saldi.

Moreover, Tapera is not included in the 'other levies' category which is coercive, as referred to in Article 23A of the 1945 Constitution of the Republic of Indonesia or in the category of other 'official levies'.

"Therefore, the Court considers Tapera to have shifted the meaning of the savings concept which is actually voluntary to become a coercive levy as argued by the applicant," said Saldi.

In addition, by paying attention to all alternatives and access that have been available to various groups of workers and citizens of the housing financing scheme, the Constitutional Court considers the existence of Tapera as an obligation not only to overlap, but also to have the potential to cause double burden.

On the other hand, the mandatory nature in Article 7 paragraph (1) of the Tapera Law is enforced without distinguishing whether workers who already own a house or not. Such an obligation, according to the Court, results in disproportionate treatment.

Even so, the Court disagreed with the petitioner's alternative petitum asking for the word 'mandatory' in Article 7 paragraph (1) of the Tapera Law to be changed to the word 'can'.

According to the Court, editorial changes only cause internal disharmonization, inter-article inconsistency, and legal uncertainty because the article being questioned is a spirit that motivates the entire norm in the Tapera Law.

In addition, Constitutional Justice Enny Nurbaningsih added, the fundamental issue of the Tapera Law is not only based on one particular article, but on the overall legal design.

Tapera was formed with the concept of savings. However, the final result is only the return of savings at the end of the membership period or retirement period. Such a scheme is inherently unable to meet the main goal, which is to provide access to the people to meet the needs of decent and affordable houses for participants," said Enny.

Therefore, the Constitutional Court considers that the legislators, in this case the government and the DPR, must reorganize the design of fulfilling the right to home. "Thus, based on the above legal considerations, the Court is of the opinion that Article 7 paragraph (1) of Law 4/2016 must be declared contrary to the 1945 Constitution of the Republic of Indonesia," said Enny.

Considering that Article 7 paragraph (1) of the Tapera Law contradicts the constitution, the juridical consequences are that other provisions of the article that are questioned by the applicant also lose their constitutional basis.

Case Number 96 was filed by the Confederation of All Indonesian Trade Unions (KSBSI). In addition to testing Article 7 paragraph (1), the applicant also questioned Article 9 paragraph (1) and paragraph (2), Article 16, Article 17 paragraph (1), Article 54 paragraph (1), and Article 72 paragraph (1) of the Tapera Law.

"Thus, because Article 7 paragraph (1) of Law 4/2016 is a cardiac article that has been declared contrary to the 1945 Constitution of the Republic of Indonesia, there is no doubt for the Court to state that Law 4/2016 as a whole must be declared contrary to the 1945 Constitution of the Republic of Indonesia," said Enny.

In other words, the Court through this decision canceled Law Number 4 of 2016. To avoid legal vacuum, the Constitutional Court has given the legislators a two-year grace period to reorganize regulations regarding housing funding and financing systems.

"Declaring Law Number 4 of 2016 concerning Tapera is declared valid and must be rearranged within a maximum of two years from the time the a quo decision is pronounced," said another point in the Constitutional Court's decision.