The judicial review related to the practice of concurrently serving as deputy minister (wamen) as commissioner of State-Owned Enterprises (BUMN) began to roll out at the Constitutional Court (MK).
This Thursday, the Constitutional Court held its inaugural trial for Case Number 118/PUU-XXIII/2025 with a preliminary examination agenda.
The petitioner, legal activist A. Fahrur Rozi, was present in person at the courtroom at the Constitutional Court building, Jakarta, while another applicant, founder of Pinterest Law Ilhan Fariduz Zaman, attended the online trial.
The two applicants submitted a request for judicial review of Article 23 of Law Number 39 of 2008 concerning the Ministry of State and Article 27B and Article 56B of Law Number 1 of 2025 concerning the Third Amendment to Law Number 19 of 2003 concerning SOEs.
In front of a panel of judges led by Constitutional Justice Arief Hidayat, Fahrur Rozi admitted that he was worried about the practice of concurrent positions of Deputy Ministers as commissioners of SOEs. According to him, there are at least 30 deputy ministers who have concurrent positions.
"Article 23 of the State Ministry Law does not mention the existence of the phrase deputy minister explicitly, while Article 27B and Article 56B [BUMN Law] do not provide qualification which are the objects of prohibition of concurrent positions," said Fahrur Rozi as quoted by ANTARA, Thursday, July 31.
Article 23 of the State Ministry of State Law contains rules prohibiting concurrent positions against ministers. The article reads:
The minister is prohibited from holding concurrent positions as: a. other state officials in accordance with statutory regulations; b. commissioners or directors of state companies or private companies; or c. organizational leaders financed from the APBN and/or APBD.
According to the petitioners, the article is not legally certain so it is contrary to Article 28D paragraph (1) of the 1945 Constitution. This is because the norm of the article only applies to the position of minister only, while the position of deputy minister can be separated from the qualification of the provisions of the article in question.
Therefore, the petitioners assessed that Article 23 of the State Ministry Law needed to obtain a lexical interpretation by adding the phrase deputy minister' explicitly into the norm of the article.
In its petitum, the petitioners asked the Constitutional Court to add the phrase deputy minister' in Article 23 of the State Ministry of State Law.
This meaning is considered to emphasize the consideration of the Court in Decision Number 80/PUU-XVII/2019, which states that all bans on concurrent ministerial positions also apply to deputy ministers because their status is both appointed and dismissed by the President.
As for Article 27B of the BUMN Law, it prohibits concurrent positions of the BUMN board of commissioners, while Article 56B of the BUMN Law regulates the prohibition of concurrent positions of the SOE supervisory board.
According to Fahrur and Ilhan, the two articles have not yet provided eligible and explicit what positions are prohibited from being occupied simultaneously by the board of commissioners and supervisory boards.
This condition is different from the rules prohibiting concurrent positions for the board of directors of BUMN which are regulated in Articles 15B and 43D of the BUMN Law. Therefore, Article 27B and Article 56B are considered contrary to the principles of fair legal certainty.
The fundamental difference, namely the supervisory board and the board of commissioners, is not prohibited from concurrently holding structural and functional positions in ministries/agencies of the central government and local governments like the prohibition against the board of directors.
In addition, the supervisory board and the BUMN board of commissioners are also not prohibited from concurrently managing political parties, legislative candidates, legislative members, regional head candidates, regional deputy candidates, regional heads, and/or deputy regional heads or other positions that can cause conflicts of interest.
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Therefore, the petitioners asked the Constitutional Court to equalize the rules for prohibiting concurrent positions of the board of commissioners and the supervisory board of SOEs as prohibited by concurrent positions for the board of directors.
In the judge's advisory session, Constitutional Justice Enny Nurbaningsih as a member of the panel advised the petitioners to sharpen the description of the conflict between the norms of the article tested with the constitution.
Where is it located if you say this there is no guarantee, for example, legal certainty or whatever, whatever, you have to wake up yourself. If necessary you make a comparison with other countries whose systems are presidential as well," said Enny.
This suggestion was conveyed by Enny specifically for the testing of Article 23 of the State Ministry of State Law. He did not provide much input regarding the testing of articles in the BUMN Law because the law was being tested for the formal aspect.
"The BUMN Law is in the process of formal testing, I don't give much there, waiting until the formal test is finished," said Enny.
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