4 Constitutional Court Judges Have Different Reasons About Changing The Status Of KPK Employees To ASN

Constitutional Judge Anwar Usman/ Antara

JAKARTA - Four judges of the Constitutional Court gave different reasons (concurring opinions) in the judicial review decision regarding the process of transferring the status of KPK employees to state civil servants (ASN).

In decision Number 34/PUU-XIX/2021, the constitutional judges decided to reject the entire application submitted by Muh Yusuf Sahide as the Executive Director of KPK Watch Indonesia. However, four judges: Wahiduddin Adams, Suhartoyo, Saldi Isra, and Enny Nurbaningsih had different reasons.

"For KPK employees to become ASN employees is not of their own volition, but is an order of the law, in casu UU 19/2019. More firmly, based on Law 19/2019 the transition of status to ASN employees is a legal right for investigators, investigators, and employees KPK," said the judge of the Constitutional Court in the verdict read by Antara, Tuesday, August 31.

Because switching status as ASN becomes the right of KPK employees in accordance with the intent of Law No. 19/2019 concerning the Corruption Eradication Commission (KPK), then the transfer must not harm the right of KPK employees to be appointed as ASN employees for any reason outside the design. that has been determined.

"Because all this time, KPK employees have served in the KPK and their dedication in eradicating corruption is not in doubt," added the judge of the Constitutional Court.

According to the four constitutional judges and in accordance with the legal considerations of the Constitutional Court Decision Number 70/PUU-XVII/2019, the "transitional status" for KPK investigators or investigators and for KPK employees is not a process of selecting new employee candidates or the selection of new ASN which requires that various a form of selection so that some can be declared "qualified" and some can be declared "not eligible" in order to continue to provide legal certainty for investigators, investigators, and KPK employees.

"Legally, if it is placed in the construction of Article 69B and Article 69C of Law No. 19/2019, the transition must be carried out first. After investigators, investigators, and KPK employees receive ASN employee status, the KPK institution can carry out various forms of tests to place them in the KPK organizational structure in accordance with the KPK's new design," said the judge of the Constitutional Court.

This means that all KPK employees, according to four Constitutional Court judges, have the right to switch status as ASN. After having ASN status, a test can be conducted to determine placement in the KPK.

"Because the status transfer is a right, the transfer is carried out first and after the right is fulfilled, it can only be followed by solving other problems, including the possibility of promotion and demotion as ASN employees at the KPK," said the judge of the Constitutional Court.

In this context, according to the four judges of the Constitutional Court, even if the application for judicial review is rejected, the legal considerations can be used as a momentum to confirm the Court's stance regarding the legal transition of the status of investigators, investigators, and KPK employees to ASN employees as a right that must be fulfilled as the spirit of the Constitutional Court Decision Number 70/PUU-XVII/2019.

In his petition, Yusuf Sahide asked the Court to state two articles in Law no. 19/2019 contradicts the 1945 Constitution of the Republic of Indonesia.

The two articles are Article 69B Paragraph (1) which states that at the time this Law comes into force, KPK investigators or investigators who have not yet had status as employees of the state civil apparatus within a maximum period of 2 years after this Law comes into force may be appointed as employees of the state civil apparatus. as long as it complies with the provisions of the legislation.

It is stated in Article 69C that at the time this Law comes into force, KPK employees who have not had the status of employees of the state civil apparatus within a maximum period of 2 years from the time this Law comes into force may be appointed as employees of the state civil apparatus in accordance with the provisions of the legislation.

Yusuf Sahide hopes that the Constitutional Court panel will amend the two articles to "When this Law comes into force, KPK employees who have not been employees of the state civil apparatus within a maximum period of 2 (two) years from the time this Law comes into force are appointed as civil servants. state as long as it fulfills the provisions of 1. Willing to become an employee of the State Civil Apparatus (ASN), and 2. Has not entered the retirement age limit according to the provisions of the legislation".

The reason for the applicant is that the phrase "can be appointed as an employee of the state civil apparatus as long as it fulfills the provisions of the legislation" in Articles 69B and 69C is used incorrectly because it uses TWK as a selection and for employees who do not pass the TWK will result in the dismissal of KPK employees, causing constitutional losses. as regulated in Article 1 Paragraph (3), Article 27 Paragraph (2), Article 28D Paragraph (1), Article 28D Paragraph (2), and Article 28D Paragraph (3) of the 1945 Constitution of the Republic of Indonesia.

However, the Constitutional Court judge rejected the arguments put forward by the applicant and stated that there was no violation of the right to recognition, guarantee, protection, and fair legal certainty in the process of transferring the status of KPK employees as ASN through TWK.