The Constitutional Court Orders The Government-DPR Forms Of Independent Institutions To Supervise ASN

JAKARTA - The Constitutional Court (MK) ordered the government and the DPR to form an independent institution that aims to oversee the implementation of the merit system to the behavior of the state civil apparatus (ASN) within two years.

The order is contained in the Constitutional Court Decision Number 121/PUU-XXII/2024 regarding the judicial review of Law Number 20 of 2023 concerning ASN proposed by Needdem, the Monitoring Committee for the Implementation of Regional Autonomy, and Indonesia Corruption Watch.

"Granted the petitioners' petition for part," said Chief Justice of the Constitutional Court Suhartoyo reading the verdict at the Plenary Court Session Room, Jakarta, Thursday, October 16, reported by ANTARA.

This matter test case began with the abolition of the existence of the State Civil Apparatus Commission (KASN).

Through Law 20/2023, the authority originally owned by KASN was handed over to the State Civil Service Agency (BKN) and the Ministry of Administrative Reform and Bureaucratic Reform (PANRB).

In legal considerations, the Court views one of ASN issues if you look at the history of the development of employment in Indonesia, which is easily intervened by political and personal interests.

Regarding this issue, the Constitutional Court assessed that there needs to be a clear separation of functions and authorities between policy makers, policy implementers, and policy supervisors so that there is no overlap in roles and conflicts of interest.

Constitutional Justice M. Guntur Hamzah explained that policy oversight does not only function as a supervisor, but also as a balancer that is outside of policy makers and implementers.

This, said Guntur, is to ensure that the merit system runs well, is accountable, and transparent so that it is able to create a bureaucracy that is professional, efficient, and free from political intervention and is able to protect ASN's career.

"In this regard, as part of the design to maintain the independence of ASN and at the same time protect the career of ASN, the Court considers it important to form an independent institution authorized to oversee the implementation of the merit system, including the implementation of the principles, basic values, code of ethics, and code of conduct of ASN," he said.

The Constitutional Court emphasized that the form of an independent institution is the authority of the legislators to regulate and form it.

"The existence of an independent institution is intended to be immediately formed as an external supervisory agency that ensures that the merit system is consistently implemented, free from political interventions and does not cause conflicts of interest in ASN governance or management," said Guntur.

Basically, Article 26 paragraph (2) letter d of the ASN Law regulates the President to delegate part of his authority to ministries and/or institutions that carry out government duties and functions in the field of supervision of the implementation of the merit system.

However, according to the Court, the Norma's article does not include components that form a merit system that are considered very important in forming moral ASN, namely the principle, basic value, code of ethics, and code of conduct of ASN.

The Constitutional Court stated, in the context of the meritocracy principle, the absence of the phrase 'assess, basic values, code of ethics, and the ASN code of conduct' in the norms of Article 26 paragraph (2) letter d of the ASN Law does not show clarity and integrity of norms as a comprehensive ASN control system.

"Therefore, according to the Court, the phrase 'assess, basic values, code of ethics, and the ASN code of conduct need to be emphasized explicitly by verbis (explicit) in the norm of Article 26 paragraph (2) letter d of Law 20/2023 so that it is not interpreted as an incomplete norm," said Guntur.

Based on various considerations, the Constitutional Court stated that Article 26 paragraph (2) letter d of the ASN Law contradicts the principles of the rule of law, protection and legal certainty, as well as equal opportunities in a just government.

In the verdict, the Constitutional Court stated that Article 26 paragraph (2) letter d of the ASN Law contradicts the 1945 Constitution of the Republic of Indonesia and does not have conditionally binding legal force, as long as it is not interpreted:

The implementation of merit system surveillance, including supervision of the application of principles, basic values, code of ethics, and code of behavior of state civil servants carried out by an independent institution.

"The independent agency in question must be formed within a maximum of two years from the time the decision quo (this) is pronounced," Suhartoyo said reading the verdict.