Key Benefits:
is the constitutional right as to the explanation of Article 51
paragraph (1) of the MK Act.
14. That Article 28H paragraph (1) and verse (3) of the Constitution of 1945 are grouped in
BAB X A UUD 1945 governing of Human Rights, with
thus it is clear that the rights set out in Section 28H paragraph (1) and
paragraph (3) of the Constitution of the 1945 Constitution of the United States. also constitute a human right
as provided in Article 1 of the number 1 Act No. 39
of 1999 on Human Rights which reads, " Human rights
Humans are a set of rights attached to the nature and
the existence of a human being the beings of the Almighty God and
is his mandatory honour, held in high esteem and
protected by the country, law, Government, and any person for the sake of
honor as well as the protection and protection of human beings ".
15. The inclusion of human rights in the change in the 1945 Constitution of Article 28A s.d Article
28J UUD 1945, not out of the situation as well as the demands of changes that
occurred during the end of the New Order's reign, i.e. demands for
5
embodied democratic life, legal supremacy affirmation,
restrictions on state power as well as guarantees and respect for
Human rights as the antiquas of various government policies
Order New to ignore those aspects.
16. The 1945 Constitution of the Constitution provides a bright spot that
Indonesia is increasingly concerned and upholding the rights values
human (human rights) that has less attention than
the Government. The Second Amendment has even spawned a single "chapter"
on Human Rights, which is in Chapter XA. If we
Have to use a constitutional comparison with other countries,
it is a personal achievement for human rights struggle in Indonesia,
because there are not many countries in the world that include special sections and
On human rights in its constitution.
17. The reference to the formulation of Chapter XA (Human Rights)
UUD 1945 was the MPR Decree No. XVII/MPR/1998. This
is put forward by Lukman Hakim Saefuddin and Patrialis Akbar, former
member of the ad hoc committee i agency MPR workers (PAH I BP MPR) who
tasked with setting up the 1945 Constitution change draft, at the trial
official in The Constitutional Court is dated 23 May 2007. The MPR Act
later gave birth to Law No. 39 of 1999
on Human Rights.
18. Why is the rights on social security considered one of human rights
human beings? The answer can be traced to an improvement in the history of existence
the rights to social security in society: The right of social security at
essentially speaking of the right of life. It is not appropriate that a person
is allowed to die slowly due to poverty and incompetence
to work in order to support oneself. Human rights to human life
did not stop at the ability to survive only.
19. Every human being has the right to have a decent standard of life, which
reaches out to rights over health, housing rights, rights to
education, and Iain-Iain. In the scope of human rights, the obligation
to ensure the james of a viable life are laid on
the shoulders of the State. The social security concept that has been developed since
6
tens of years ago were considered to be able to help the state to ensure that
complies with the rights to a life that is worthy of each of its citizens.
20. In a broad understanding, the right to social security speaks of
the availability of the availability of life needs for the sake of standard fulfilment
a life of enviable life. That is because the right to social security is wrong
one form of human rights in the economic and social spheres.
21. Thus, the rights to social security are actually talking about
the related forms of human rights and respect.
In the perspective of civil and political rights, the right to bail
social contains aspects of the protection of the right to life, the right of
the security of a person, and also the right to the protection of the physical torture
nor any form of inhuman treatment. In economics,
social, and cultural, the right to social security speaks of fulfilment
rights to health, education, housing, and others. Because of this,
the implementation of the social security program should be done with
a human rights approach based on the following principles:
1. Wide coverage, meaning the social security program should give
benefits that include a variety of things that cause a person to not
be able to work and meet the needs of his life. This is, for example,
covering an unworked, sick, advanced age, giving birth, or
a guarantee of life for children when their parents die.
2. Universality and anti-discrimination, meaning it can reach all
people in need of social security, without exception and not
discriminating against any basis including racial disparity, type
gender, sex orientation, religion, political views, or status
economics.
3. Enough and worth it, meaning the benefits of social security received
should be sufficient and viable. For example, a health guarantee that
is given should be able to finance the treatment needs
as long as it is needed by the sufferer.
4. Respect for procedural rights, meaning is the rule and
the procedure for the benefit of social security should be set
in such a way that it is fair and reasonable. For example, someone.
7
being in a state of emergency is supposed to acquire
access to get the service fast and effective.
22. That the setting that the right to obtain social security is also
is clearly set in Article 25 of the Universal Declaration of Human Rights
December 10, 1948 which reads:
" Everyone is entitled to a living taraf. health and welfare for herself and her family, including food, clothing, housing and health care as well as necessary social services, and entitled to bail at the time of unemployment, suffering from pain, disability, being widowed, reaching advanced or experiencing another lack of search eyes due to the circumstances that are in place out of power ".
23. That it is thus clear that the right to obtain
welfare, health care and social security as
is set in Article 28H paragraph (1) and paragraph (3) of the 1945 Constitution is the right
thee Constitution of 1945 are clear and decisive
with the provisions of Article 34 of the paragraph (2) of the Constitution of 1945 which reads: " Country
develops a social security system for the whole people and
empowers that society. weak and unable to fit the
dignity of humanity ".
11. That sense of phrase " every person "in Article 28H paragraph (1) and verse
(3) Constitution of 1945 is defined as" all persons who are attached to the Constitution
1945 as the constitution of all Indonesian citizens without
with the exception of the rich, the poor, the businessman, The laborer, the winery and the other
.
12. That the definition of the word "entitled" in Article 28H paragraph (1) of the Constitution of 1945
is entitled.
13. That due to the right as referred to in Article 28H (1)
and paragraph (3) of the Constitution of 1945 is
(3) Each participant may include another member of the family
to be dependable with the addition of the dues.
11
44. That Article 21 of the Law 40/2004 reads:
(1) The violation of the health guarantee remained in effect at least 6 (six)
months since a participant experienced the termination of a working relationship.
(2) In terms of the as referred to by paragraph (1) after 6 (six)
the month has not obtained a work and cannot be able, it is
paid for by the Government.
(3) Participants who experienced total defects remain and cannot be able, their
paid by the Government.
(4) The provisions as referred to in paragraph (1), paragraph (2), and paragraph (3)
set further with the Regulation President.
45. That Article 27 Act 40/2004 reads:
(1) The health guarantee for the recipient of a wage recipient is determined
based on the percentage of the wage to a certain extent, which
is gradually borne out together by workers and givers work.
(2) The health insurance coverage for participants who do not receive
wages are determined based on the periodically reviewed basis.
(3) The health guarantee is for the recipient of the dues
defined by the regularly specified nominates.
(4) The wage limit as referred to in paragraph (1), reviewed
periodically.
(5) The equivalent is referred to in paragraph (1), paragraph (2), and
paragraph (3), as well as the wage limit as in paragraph (4) is set more
further in the Presidential Regulation.
46. That Article 28 of the Law 40/2004 reads:
(1) Workers who have a family member of more than 5 (five) persons and
want to include required family members to pay
additional dues.
(2) An additional dues as referred to the paragraph (1) is set more
further in the Presidential Regulation.
47. That the provisions of Section 20, Section 21, Section 27, Section 28, Act 40/2004
are the arrangements that explain and govern more
further the provisions of Article 19 of the Act 40/2004, therefore the provisions of Article 20
and the Section 21 are the provisions of this section. also in conflict with Article 28H of paragraph (3) and
Article 34 of the paragraph (2) of the 1945 Constitution.
12
48. That Article 30 of the Law 40/2004 reads, the occupant of the work accident
is someone who has paid dues.
49. That Section 34 of the Act 40/2004 reads, (1) The warranty of warranty
a working accident is as large as a certain percentage of wages or
earnings that are covered entirely by the employers. (2) The subject
the warranty of work accident for participants who do not receive a wage
is the nominal amount specified periodically by the Government.
(3) The dues as referred to by paragraph (1) vary for
each worker group corresponds to the risk of a working environment. (4)
The provisions as referred to in paragraph (2) and paragraph (3) are set more
further in Government Regulation.
50. That Section 30 and Section 34 of the 40/2004 Act represents
the arrangements that describe and govern further the provisions of Article
29 Law 40/2004, therefore the provisions of Article 30 and Section 34 of that
also contradictory to Article 28H paragraph (3) and Article 34 of the paragraph (2) of the Constitution
1945.
51. That Article 36 of the Law 40/2004 reads, an old day bail participant is
a participant who has paid dues.
52. That Section 38 of the Law of 40/2004 reads, (1) The warranty of an old day's warranty
for participants of the wage recipient is set by a certain percentage
of certain wages or income shared by
the employers and (2) The worker (2) is an old day assurance for
participants who do not receive a wage are set based on the number of nominal
set based on the nominal number specified
periodically. (3) The provisions as referred to in paragraph (1) and paragraph (2)
are further regulated in the Government Regulation.
53. That Section 36 and Section 38 of the 40/2004 Act constitute
the arrangements that describe and govern further the provisions of Article
35 Act 40/2004, therefore the provisions of Article 36 and Section 38 of that
also contradictory to Article 28H paragraph (3) and Article 34 of the paragraph (2) of the Constitution
1945.
54. That Article 40 of the Law 40/2004 reads, the retirement guarantee is
the worker who has paid the dues.
13
55. That Section 42 of the Act 40/2004 reads, (1) The sum of pension guarantees
for participants of the wage recipient is determined by a certain percentage
of a wage or income or a certain nominal amount that
is shared with between the employers and the workers. (2) The provisions
as referred to in paragraph (1) are governed by further in
Government Regulation.
56. That Section 40 and Section 42 of the Act 40/2004 are
the arrangements that describe and govern further the provisions of Article
39 Act 40/2004, therefore the provisions of Article 40 and Section 42 of that
also contradictory to Article 28H paragraph (3) and Article 34 of the paragraph (2) of the Constitution
1945.
57. That Article 44 of Law 40/2004 reads, " The participant of the death guarantee is
any person who has paid dues ".
58. That Article 46 of the Law 40/2004 reads:
(1) The warranty of death is borne by the employers.
(2) The price of death guarantee for the recipient of the wage recipient
is determined based on a certain percentage of wages or
earnings.
(3) The basis of death guarantee for participants is not a wage recipient
determined based on a certain nominal amount paid by the participant.
(4) The provisions as referred to in paragraph (1), paragraph (2), and paragraph (3)
set further in Government Regulation.
59. That Section 44 and Section 46 of the 40/2004 Act represents
the arrangements that describe and govern further the provisions of the Article
43 Act 40/2004, therefore the provisions of Article 44 and Section 46 of that
are also contrary to the Article 28H paragraph (3) and Article 34 of the paragraph (2) of the Constitution
1945.
60. That Article 17 of the Law 40/2004 reads:
(1) Each participant is required to pay his extended dues
based on the percentage of the wages or a certain nominal amount.
(2) Any employers are required to collect dues from the workers,
add the dues that are its obligation and pay
the dues to the Social Security Organizing Board
periodically,
14
(3) The equivalent is referred to in paragraph (1) and paragraph (2)
specified for each type of program periodically accordi an iuran or Obligations
specified.
42. That therefore, Article 19, Article 29, Article 35, Article 39, Article 43
Act 40/2004 is clearly in conflict with Article 28H of the paragraph (3) and Article 34
paragraph (2) of the 1945 Constitution.
43. That Article 20 of the 40/2004 Act reads:
(1) The health care participant is any person who has paid
the dues or its dues are paid by the Government.
(2) Members of the participant ' s family are entitled to receive the benefit of the bail
Health. er oath on November 24, 2011, which
in the first place described as follows:
Abdul Latif Social Security is a social protection system that provides
reimbursed over lost or diminished income due to events
or certain economic social risks, e.g. like sickness, old days,
accident, and so forth.
Insurance and social insurance is the often overlapping notions
and less precisely understood. Social security has two mechanisms, which
first is a social insurance mechanism, the second is the help
social. But a narrow sense of understanding, social security often refers
to the social insurance sense or social security, social insurance, and
social assistance. So, there are three notions to be understood with
precisely: social security, social insurance, and social assistance. Social security
in a narrow sense refers to social insurance. But in
the broad sense, social security is made up of social insurance and
social assistance.
In social insurance or social security, the bond between the handler and
is being held guaranteed by the Act. In that sense is the "collective." Because of that, in social insurance, it does n' t apply like a mechanism
private insurance. So it is nonselection, workers are guaranteed by the Invite-
Invite to get a social guarantee. But in the insurance sense
private/commercial then applies dependents between the customers, or participants,
performing and liability.
A lot less understanding is about the definition of social security,
social insurance, And sosaial help. Because it's a lot of countries especially
18
which is a welfare state referred to that social security
in an outside sense.
Often overlaps between social security in the sense that
narrowly, social insurance refers to workers ' rights or employees rights.
But the definition of social security in a broad sense is often pronounced
as the rights of citizens or citizens rights. Here a little
confusing many people, what is intended it is a right-
worker ' s rights or the rights of citizens?
Social insurance is a worker ' s rights, could be implemented with law-
employment law. To be a participant must pay the dues
is mandatory. There are ability to pay, must pay the dues and usually
categorised from wages. Therefore, in the search of social security,
the social security ladder at the ILO is three levels.
The first level is or the stairs are the first to be called
social assistance. There are some rights such as rights enjoyed by
poor people, disabled people, by children, and for health
base. It is a social and breeding mechanism for which it is derived from taxes. The country needs to be handed down. If a society that
is included in this category is not assisted, it will not be long before he will die.
Like a disaster victim, and so on.
The second stairwell is a social insurance mechanism. This is the
to the standard ILO convention 102 in 1952. There are nine branches
social security. So, if Jamsostek there are four types or programs,
actually if it refers to the ILO there are seven. There are two that have not been
in place of the unemployment program, unemployment insurance
and family allowance (family allowance).
So there were nine branches of the minimum standard ILO Convention of 102 Year 1952.
This is the operational procedure of the 1948 Human Rights Declaration. That
the social guarantee it is the right of citizens or the right of each person, listed
in Article 48. Later described in the ILO Convention 102, this is indeed
referring to the workers ' rights.
At the third level referred to the social security ladder is insurance
private or commercial. So this three-level understanding is often not understood
precisely, whether that is meant to be social insurance, or a guarantee
19
social in a narrow sense, or social reassurance in the sense
the broad?
The Implication is to be formulated exactly who is the
coverage of that social security program? Is the whole citizen or
that worker? How about the design of the program, anything
the program? How's government of its manners? And what about
His celebration?
In the welfare states, the developed countries generally,
the financing of that social security comes from taxes, so it is called
social security tax, in countries there. So they pay taxes and
taxes are high, they're progressive and the social security tax is in
some countries reach 40% to 50% of APBN.
In countries which subscribe to the financing of the tax for the program
the social security that applies to all citizens, then the spending
the social jamian of a country is carried out annually. So why is the president
and the prime minister campaigning for social security? And because of this
concerns the passage of the fiscal directly. So it's 30%, 40%, 50%.
Every year the congress and the president agree on how the APBN allocation
for social security. And usually that social security is in the sense that
-including education, including health, including aid to
the housing of the poor, and so on.
In the developing world, it usually uses. That financing
Tory. Who wants to be a participant, he pays the dues. As it applies
gradually, it is not directly to the entire citizen.
Usually the first stage is a civil servant. In Indonesia with Taspen,
then TNI, then Asabri. The next stage when it is established
to the working society, then it appears Jamsostek, then
expanded again to the informal, new then the entire citizen. The program
is also gradual. So it was the exercise of social security.
In the country that adheres to the contributory systemsystem, it is managed.
Invested in order to expand because the state does not bear the
iuran. So it means that the state is welcome to a working society,
a society that is income to cram, protect itself.
Because the country is not strong to bear its glory.
20
While for the poor, inable, usually
category of taxes is used. And that is in effect, for example, the
Indonesia case, for example, as did the Department of Social Affairs,
then the BOS, then housing for the poor rusunawa.
In Jamsostek, employers and workers pay a premium.
Jamsostek is a part of the sub-system intended inside
SJSN Act.
Social security is a right to be accepted society and
as well as Government obligations.
Social insurance in various countries there is no single model. There are many
regimes, there are many models, but applicable general principles within
hostin>
3. Evidence P-3: Photocopy of Law No. 2 of 1992 on
The Perinsurance Effort;
17
4. Evidence P-4: Book of Law Number 39 of 1999 on Rights
Human Rights;
5. Proof P-5: Book of Laws of the Trade Law (KUHD);
6. Proof P-6: Photocopy of the Applicant I;
7. Proof P-7: Photocopies of the Identity of the applicant II;
In addition, the petitioners submitted an Expert named Abdul Latif, which was heard und systems as a perinsurance on
Indonesia's national social guarantee as stated in the Invite-
Invite a quo considered contrary to the 1945 Constitution that guarantees
authoring rights The constitution of all Indonesian citizens.
4.) The 1945 Constitution has guaranteed welfare, social security, rights to
all Indonesian people.
5.) According to the applicant, the provisions of article a quo are asked
materiedown is more to the form of social insurance in which insurance
social different to the social security as referred to Article 28H
paragraph (3) of the 1945 Constitution because social insurance does not require a premium
or a particular dues or obligations to the person who will obtain
rights or benefits, while social security is a human right and
as well as the constitutional rights attached to the nature and existence
24
Indonesian citizens as human without requiring any
premiums or specific obligations.
6.) That the Applicant considers Article 17 of the 40/2004 Act expressly
that the social insurance in the The a quo is not a guarantee
social as mandated by Article 28H paragraph (3) and Article 34
paragraph (2) of the Constitution of 1945, therefore Article 17 of the Act 40/2004 contradictory
with Article 28H paragraph (3) and Article 34 of the paragraph (2) 1945 Constitution.
7.) The principle of social insurance set out in Article 17, Section 19, Section 20,
Article 21, Article 28, Article 28, Section 29, Article 30, Section 35, Article 35,
Article 36, Article 38, Article 39, Article 40, Section 42, Article 43, Section 43, Section 43, and
Article 46 of the Law 40/2004 is considered the applicant to be and will be in the way
fulfillment of the applicant's constitutional right to obtain a social guarantee
as referred to in Article 28H paragraph (3) and Article 34 of the paragraph (2)
Constitution of 1945.
8.) The application of the principles of social insurance in Article 17, Article 19, Section 20,
Article 21, Article 28, Article 28, Article 29, Section 30, Section 35, Article 35,
Article 36, Article 38, Article 39, Article 40, Section 42, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43
Article 46 of the 40/2004 Act according to the applicant is the real form
violation of human rights for the applicant;
9.) The provisions of Article 17, Article 19, Section 20, Article 21, Article 27,
Article 28, Section 29, Article 30, Section 34, Section 34, Section 30, Section 34, Section 30, Section 34, Section 34, Section 30, Section 34, Section 34, Section 34 Article 35, Section 36, Section 38,
Article 39, Article 40, Article 42, Section 43, Section 43, Section 44, and Article 46 of the Act
40/2004, conflicting with the 1945 Constitution, in particular Article 28H of paragraph (3)
and Article 34 of the verse (2).
II. About Legal Standing (Legal Standing) The petitioners pursuant to the provisions of Article 51 of the paragraph (1) Act No. 24 of the Year
2003 on the Constitutional Court (MK Act), states that the applicant
is the party that considers the right to be. and/or its constitutional authority
aggrieved by the enactment of the Act, namely:
a. Individual citizens of Indonesia;
b. The unity of the indigenous legal society as long as it is alive and in accordance with
the development of the people and the principle of the Republic of the Republic of Indonesia
which is set in an invitation;
c. the public or private legal entity; or
25
d. country institutions.
The above provisions are expressed in its explanation, that what
with "constitutional rights" is the rights set in the Act
The Basic State of the Republic of Indonesia in 1945, then first. must
explain and prove:
a. qualifiers in the a quo application as referred to in Article 51
paragraph (1) Act No. 24 of 2003 on the Constitutional Court;
b. the rights and/or its constitutional authority in the qualifying referred to which
is deemed to have been harmed by the enactment of the tested legislation;
c. the rights and/or constitutional authority of the applicant as
result The legislation is required for testing.
Further the Constitutional Court has given the definition and constraint
cumulatively about the rights and/or constitutional authority
arising out of the effect of the laws. an Act according to Section 51 of the paragraph (1) of the Act
MK, that it must be meets 5 (5) terms as follows:
a. the constitutional right of the applicant given by the Act
Basic State of the Republic of Indonesia in 1945;
b. that the applicant ' s constitutional right is considered by the applicant to have
harmed by a passed legislation;
c. that the constitutional loss of the intended applicant is specific
(specifically) and actual or at least as potential as by reasoning
a reasonable one is certain to occur;
d. (causal verband) between the loss and
the enactment of the legislation is being treated for testing;
e. It is possible that by the request of a request then
the constitutional loss postured will not or no longer occur.
Over those things above, may the need be questioned the interests of the
applicant whether it is appropriate as a party to assume the right and/or
its constitutional authority is harmed over the enactment of Law 40/2004. Also
whether there is a potential constitutional loss of potential applicants
that reasonable reasoning can be certain to occur, and whether
there is a causal link between the loss and the cause of the (causal verband). expires
The Act is being mocited for diuj.
In addition to that according to the Government, the presumption of the applicant stated
26
that the provision of the foregoing to be tested above has been and
discriminatory, also not appropriate because to assess whether a norm
the law in such an Act is discriminatory or not,
then as a reference/basis for the term is as defined in
Article 1 of the paragraph (3) of the Law No. 39 of 1999 on the Rights of Human Rights
Man, as well as Article 9 International Covenant on Economic, Social and
Cultural Right (International Covenant on the Rights of Economics, Social and
Culture.
Over those matters, the Government requests the applicant through
The Chairman/Assembly of the Constitutional Court of Justice to explain and prove
legally in advance whether the applicant is right as a party to the right
and/or its constitutional authority is disadvantaged. The government argues
that there is no rights and/or constitutional authority of the apby the 1945 Constitution. The applicant is aggrieved because
must pay a premium or the dues that the applicant assumes
the payment of premiums or dues is a form of a perinsurance,
not a social guarantee.
3.) The applicant assume that the social security in the Act
a quo uses an insurance system, which requires the people to
pay a premium for social security for those paying a premium or the dues
that is guaranteed by the state. Social security is the absolute right of all
the people. With such
social, economic and basic life needs are viable.
(4) The social security program for poor and non-capable people
paid for by the Government.
(5) At the first stage, the dues as referred to in paragraph (4) are paid by
The government for the health guarantee program.
(6) The provisions as referred to in paragraph (4) and verse (5) is set further
with Government Regulation.
Host of the National Social Security System as
mandated by the 1945 Constitution, primarily referred to in Article 28H paragraph
(3) which states: " Everyone is entitled to a social guarantee
allows for the overall development of himself
dignified ", and Article 34 of the paragraph (2) which states: " Developing countries
social security system for the whole people and empowers the society that
is weak and cannot be compatible with the dignity of humanity.
The National Social Security System (SJSN) is essentially
a government program aimed at providing certainty over protection and
social welfare for the entire Indonesian people, through the System program
Guarantee National Social (SJSN) is expected every resident can meet
30
The basic needs of a viable life that can be lost or
are reduced, among other things due to reduced income, due to illness,
in an accident, due to termination of employment (layoffs), expires
works (retirees) and/or for entering an advanced age (manula).
Social Security is a universal mechanism
within nurturing and improving the welfare of a country.
Despite the principles of the universality of the same, that is generally based
on the social insurance mechanism and managed by the central government or
federal, but in the organizers there is a wide variety. The broad
variation is generally in the type of program, benefit level, and level
iuran in various countries, it is inevitable due to its diversity
the economic and cultural social level of the country's population.
Premi is a sum of the money paid to
the pentagung in return for the risk it is in charge. Because Social Security
Labor is social insurance, then in the Social Security Guarantee
is known also premiums. In the Insurance Law, the dues paid by employers
it ' s called a premium. Employers who pay the premium are status as
liabilities. Labor whose dues were paid by the businessman as
was held on a status as a third party of interest. So, in the
Social Security Guarantee (Jamsostek) there is a liability called
a businessman and there is a third party of interest called labor.
That the National Social Security System is like the one in the Act
40/2004, organized on the following principles:
The Kegotongroyongan principle, this principle is embodied in the gotong mechanism
royong of the participants who were able to the less able participants
mandatory confluency for all people, low risk participants
help At high risk, and healthy participants help the sick.
Through this kegotongroyongan principle social security can cultivate
social justice for the entire Indonesian people.
The Nirlaba principle, that fund management The mandate is not intended for
seeking benefits for the Social Security Organizing Agency is for
fulfills the importance of the participant's interests. Secure funds, results
The development, and budget surpluses will be utilized by-
magnitude for the benefit of the participants.
31
The principle of openness, prudence, accountability, efficiency and effectiveness,
The principles of this management are applied and underlying all activities
funds from funds that come from the participants and from results
its development.
The Portability principle, that social security is meant to provide
a continuous guarantee, although participants move jobs or
places to stay, but still within the territory of the Republic of Republic region
Indonesia. Increasing the growth of economic growth, the more agile
transportation in the archipelago, and the widespread use of government enterprises and
the private sector in the archipelago causes residents to be more frequent
moving around. To ensure continuity of guarantees, wherever
residents are in the homeland, then this principle demands hosting
social security at the national level. This principle applies much to the
country in the world.
The principle of the inclusion is mandatory, for all Indonesians
to be a participant so that it can be protected, even in its application
adapt and consider the people ' s economic capabilities and
the government as well as the eligibility of the program Participants start from
workers in the formal sector, along with that informal sector can
be willing participants and those who work independently,
so in the end the National Social Security System can be includes
the entire people.
The Amanat Fund principle, that the funds collected from the participant's dues
is a titipan to the organizer bodies to be managed as well as-
in order to optimize the funds. for welfare
participants.
The principle of the National Social Security Fund Management Results, that results
deviders from shareholders are returned to the benefit of participants
social security.
The Social Insurance Principles as the terms of the section The -a
of testing is included in the GOTNESS between
the rich and the poor, the healthy and the sick, the old and the ones that
the young and the risk is high and low. Whereas the Equity Principles are
give commonality in obtaining service according to
32
her medical needs are not related to the amount of dues that has been
overpaid.
According to the Government, the provisions of article a quo Act 40/2004, not
contrary to the provisions of Article 28H paragraph (1) and paragraph (3) as well as Article 34
paragraph (2) of the 1945 Constitution, and do not prejudice the constitutional rights and//authority of the
The applicant, with an explanation as follows:
1. Against the provisions of Article 17 of the Act 40/2004, the Government has provided
an explanation of its explanation as stated in the Government's description
in the case register Number 50 /PUU-VIII/2010 and has also been disconnected by
The court of law. The constitution on November 21, 2011 with the amar ruling
rejected the entire request of the applicant (vide Putermination 50-PUU/VIII/2010).
2. Against the provisions of Article 19, Section 20, Article 21, Article 27 and Article 28 of the Act
40/2004 which at its core are related to health0/2004 are as follows;
(1) Each participant is required to pay its large dues based on
The percentage of the wages or a certain nominal amount.
(2) Any employers are required to collect dues from their workers, adding
the dues that are its obligations and pay the dues to
The Social Security Organizing Agency is periodically.
(3) The number of verses (1) and verse (2) are definedfor each type of program periodically according to the development
erdict:1. Rejecting the applicant 's testing request was entirely or at no-
not to state that the applicant' s testing could not be
received (niet onvankelijk verklaard).
2. Received overall Government information.
3. Specify the provisions of Section 17, Section 19, Section 21, Section 21,
Article 28, Section 29, Section 30, Section 35, Article 35, Section 36, Article 38, Article
39, Article 40, Section 42, Section 43, Section 43, Section 43, Section 40 and Section 46 of the Act
No. 40 2004 on the National Social Security System not contradictory with Article 28H of the paragraph (1) and paragraph (3) as well as Article 34 of the paragraph (2) of the Constitution of the Republic of Indonesia in 1945;
[2.4] weighed that the Petitioners delivering a written conclusion
received in the Court of Justice on 2 December 2012 which
on the petitioners fixed with its stance;
36
[2.5] weighed that to shorten the description in this ruling,
everything that happened at the trial was quite appointed in the news of the event
the trial, which is an inseparable unity with
this verdict;
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the a quo is
testing of the constitutionality of Article 17, Article 19, Article 20, Article 21, Article 27,
Article 28, Section 29, Article 30, Section 34, Section 34, Section 28, Section 34, Section 34, Section 21, Section 34, Section 34, Section 34, Section 34, Section 34, Article 35, Section 36, Article 38, Article 39,
Article 40, Article 42, Section 43, Article 43, Section 44, Section 46, Article 46 of the Law No. 40
Year 2004 on the National Social Security System (Republic of State Sheet
Indonesia of 2004 No. 150, Additional State Sheet of the Republic
Indonesia Number 4456, next called Act 40/2004), which stated:
- Article 17: (1) Each participant is required to pay his extended dues
based on the percentage of the wages or a certain nominal amount.
(2) Each of the employers is required to collect the dues of its work,
adds the dues to its obligations and pay the dues
to the Social Security Organizing Board periodically.
(3) The Besanya is as referred to in verse (1) and verse (2)
specified for each program type periodically in accordance with
social development, economic and viable basic needs.
(4) The social security program for the poor and the not
was able to be paid by the Government.
(5) In the first stage, the iuran as referred to in paragraph (4) is paid
by the Government for the health guarantee program.
(6) The provisions as referred to in paragraph (4) and paragraph (5) are set over
continue with Government Regulation.
- Article 19: (1) Warranty health organized nationally based on principle
Social insurance and equity principles.
37
(2) The health guarantee is held with the purpose of ensuring that participants
obtain health and protection maintenance benefits in
meets the basic health needs.
- Article 20: (1) The health guarantee participant is any person who has paid
iuran or its dues are paid by the Government.
(2) Members of the participant ' s family are entitled to receive a health guarantee benefit.
(3) Each participant may include another member of the family which
becomes a date with the addition of iuran.
- Article 21: (1) The health insurance dispute remained in effect at least 6 (six) months
since a participant has a disconnect working relationship.
(2) In terms of participants as referred to in paragraph (1) after 6 (six)
months have not obtained a job and cannot be able, it is paid
by Government.
(3) Participant having a total disability fixed and unable, its iability
paid for by Government.
(4) The provisions as referred to in paragraph (1), paragraph (2), and paragraph (3)
are further governed by the Presidential Regulation.
- Article 27: (1) The Besitions of the health guarantee for the recipient of a wage recipient
is determined based on the percentage of the wage to a certain extent, which
is gradually borne out together by workers and employers.
(2) The price of a health guarantee for participants who do not receive
wages determined by nominal Periodically reviewed.
(3) The health insurance coverage for the recipient of the assistance
is determined based on the periodically set of terms.
(4) The wage limit is referred to in the paragraph (1), periodically reviewed.
(5) The dues are as referred to in paragraph (1), paragraph (2), and paragraph
(3), as well as the pay limit as referred to in paragraph (4) is governed more
further in the Presidential Regulation.
38
- Article 28: (1) Workers who have a family member of more than 5 (five) people and want
include other members of the family required to pay additional
iuran.
(2) Additional dues as referred to in paragraph (1) are set further
in Presidential Regulation.
- Article 29: (1) The warranty of job accidents is organized nationwide based on
the principle of social insurance.
(2) The work accident guarantee is hosted with the purpose of ensuring that
participants obtain health care and santunan benefits
cash if a workers experience a work accident or suffer
illness
- Section 30: The occupant of the job accident is someone who has paid
iuran.
- Article 34: (1) The price of a job accident guarantee is as large as the percentage
certain of the wage or income is covered entirely by
the employers.
(2) The price of a job accident guarantee for a participant who is not
receiving wages is the nominal amount specified periodically
by the Government.
(3) The price is equivalent to that of referred to the paragraph (1) vary for
any worker group corresponds to the risk of the work environment.
(4) The provisions as referred to in paragraph (2) and paragraph (3) are set more
further in Regulation Government.
- Article 35: (1) Old day Guarantee hosted nationally based on principle
social insurancen the Constitution
is a social security sense in a sense not only for social insurance
which is purely in the country, but includes social security at
workforce.
V. Conclusion Based on that explanation above, the Government pleads to
The Chairman/Assembly of the Constitutional Court of Constitutional Court examining, prosecuting
and severing the plea of Act No. 40 of 2004
on the National Social Security System against the Country Basic Law
Republic of Indonesia of 1945, may give the following v b>[3.5] and paragraph [3.6] above, further the Court will consider the legal standing (legal standing) the applicant
in the plea a quo:
[3.8] It weighed that on the petitioner I and the Applicant II
postulate as a person of the entitled Indonesian citizen over
social security as referred to in Article 28H paragraph (3) of the 1945 Constitution.
According to the applicant, the Act
40/2004 National Social Security System is using the social insurance system so that it affects the right
the constitutional applicant to obtain a social guarantee. The applicant I and
The applicant II is an employee of a state owned law firm that
43
is the subject of the national social security system so that the fulfilment of the right
its constitutionality is strongly influenced by provisions in the Act 40/2004.
[3.9] A draw that with regard to potential consequences experienced
by the applicant is associated with the constitutional right of the applicant, according to
The court, there is a causal relationship (causal verband) between The loss
means and the enactment of the Act to which the test is being moved. By
as it is, according to the Court, the applicant has a legal position (legal
standing) to apply for a quo;
[3.10] It is weighed that by the Court of competent judgment
plea a quo, and the applicant has a legal position (legal
standing) to apply for a quo then the Court
will consider the subject;
The subject of a request
Court opinion
[3.11] Draw that related plea a quo, especially regarding
the norm in question the petitioners, the Court first
gives consideration as follows:
That the applicant postulate the constitutionality of Article 17, Article 19, Article 20,
Article 21, Section 27, Section 28, Section 29, Section 30, Article 34, Article 35, Section 36,
Article 38, Section 39, Article 40, Section 42, Section 43, Section 43, Article 44, Section 46, Section 46, Section 46, Section 46, Article 46 of the 2004
social
embraced by the national social security system in Law 40/2004. Any section
in question by the Applicant, each of which is a provision
for any type of warranty program, namely health assurance (Article 19, Section 20,
Article 21, Section 27, and Section 28), the warranty of work accident (Article 29, Article 30
and Article 34), the assurance of an old day (Article 35, Article 36, and Article 38), guarantees
pension (Article 39, Article 40, and Article 42), the guarantee of death (Article 43, Article 44,
and Article 46). The applicant has a problem with any such warranty program
that determines that the health guarantee, accident guarantee
work, parental day assurance, pension guarantee and death guarantee are held
based on principle Social insurance, as well as an iuran payment obligation.
44
for the participants of each such warranty program. The applicant
postulate that the principle of social insurance and the obligation of payment of dues
contradictory Article 28H of the paragraph (3) and Article 34 of the paragraph (2) of the Constitution
1945. For the reasons for the application of the applicant to the constitutionality
The articles are the same, namely the constitutionality of the principle
the social insurance and the duty of paying dues to the participants of the warranty program
social, then the Court will consider the principle of social security with
the following insurance system is being motionless testing, not
considering the constitutionality of the article one by one;
[3.12] Weighed that the previous Court has decided
regarding the constitutionality Article 17 paragraph (1), paragraph (2), and paragraph (3) Act 40/2004
in the Decree of Constitutional Court Number 50 /PUU-VIII/2010, dated 21
November 2011. In this ruling, the Court considered between
another as follows: " That the neutrality of the 1945 Constitution has expressly required
states to develop a social security system, but the 1945 Constitution is not
requires the state to adhere to or select a specific system in
The development of the social security system is referred to. The Constitution of 1945, in this case, Article
34 verse (2), only determines the constitutional criteria-which are at once
the purpose of the social security system that the state needs to develop,
that system meant to include the whole people with an intent to
empower the weak and inable society as appropriate
The dignity of humanity. As such, any system selected in
The development of such social security should be considered constitutional, in a sense
in accordance with Article 34 of the paragraph (2) of the 1945 Constitution, as long as that system includes
the entire people and intended to improve community empowerment
the weak and unable to match the dignity of humanity ";
That regarding the options of the National Social Security System with the insurance system
Social, the Court in Putermination Number 007 /PUU-III/2005, dated 31
August 2005 has declared constitutional, with consideration as
following, " ... The court argues that the SJSN Act has been sufficient meets
The intent of Article 34 of the paragraph (2) of the 1945 Constitution, in the sense that the warranty system social
selected SJSN Act has enough to outline the intent of the Act Base
intends for a social security system developed encompassed all
45
the people and aims to increase the ability weak society
and cannot be compatible with dignity humanity, ... " thus
the Court ' s consideration mutatis mutandis applies to the plea
this;
That regarding dues payment obligations, the Court has argued also
in the Number of the 50 /PUU-VIII/2010, dated 21 November 2011, which
states: " Regarding insurance dues as defined in the section
17 paragraph (1), paragraph (2) and paragraph (3) of the SJSN Act are consequences that must be
paid by all insurance participants to pay the dues or premiums
magnitude has been determined based on the applicable provisions that are not
all are charged to the state. In Article 34 of the paragraph (1) of the 1945 Constitution of the concept
The National Social Security System is the uncapable government of finance
pay the dues, which in accordance with Article 17 of the paragraph (4) of the SJSN Act.
Based on that according to the SJSN Law Court has implemented the principle
St of the testing Act;
c. the constitutional loss must be specific (special) and actual or
At least a potential that according to reasonable reasoning can be confirmed
will occur;
d. A causal relationship (causal verband) between the intended loss
and the expiring of the testing Act;
e. It is possible that with the request of a request then
constitutional losses such as those that are postulate shall not or no longer occur;
[3.7] Draw that based on the description as
paragraph
is able to pay a premium or an insurance dues that Except for himself
alone as well as to assist the non-capable citizens ";
That special against the applicant ' s request regarding Article 17 of the paragraph (1),
paragraph (2), and paragraph (3) Act 40/2004 under Article 60 of the Law MK
states, " (1) To the subject matter of the paragraph, section, and/or the interior
The laws that have been tested, cannot be moied back testing; (2)
The provisions as referred to in paragraph (1) could be excluded if the material
charge in the Republican Basic Law Indonesia Year 1945
which was made the basis of a different test ", the court declared
the applicant ne bis in idem, by the request
no reason for the constitutionality of the constitution. different;
That by due issue by the petitioners Regarding
constitutionality of Section 17 (4), paragraph (5) and paragraph (6), Section 19, Section 20,
Article 21, Section 28, Section 28, Section 29, Section 30, Section 35, Article 35, Section 36,
Article 38, Section 39, Section 40, Section 40, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 43, Section 44, Section 46 of the Law 40/2004
is on the basis of the same reason as the testing of Article 17 of the paragraph (1), (2), and
(3) in the preceding ruling, the problem of the principle of social insurance and
the obligation of payment of dues for the participants, then Court considerations in
Putermination Number 007 /PUU-III/2005, dated August 31, 2005, and Verdict
46
Number 50 /PUU-VIII/2010, dated November 21, 2011, it was mutatis
mutandis in effect for this ruling;
[3.13] It weighed that based on the consideration, according to
The court, the applicant ' s plea is unwarranted according to the law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court of law for prosecuting a quo;
[4.2] The petitioners have a legal position. (legal standing) to
apply a quo;
[4.3] The application is unwarranted according to the law.
Based on the Basic Law of the Republic of Indonesia
In 1945, Act Number 24 Year 2003 on the Court
The Constitution as it has been amended with Law Number 8 of the Year
2011 on Changes to the Law No. 24 Year 2003 concerning
Constitutional Court (State Gazette of Indonesia 2011 Number
70, Additional Gazette of the Republic of Indonesia Number 5226), d a n
Act No. 48 of 2009 on the Power of Justice
(sheet of state of the Republic of Indonesia 2009 number 157, additional
sheet of state of the Republic of Indonesia Number 5076);
5. AMAR RULING
PROSECUTING,
STATES:
THE APPLICANT ' S APPLICATION OF ARTICLE 17 PARAGRAPH (1), PARAGRAPH (2), AND PARAGRAPH (3) Law Number 40 Of 2004 On The Social Security System
National (sheet Of State 2004 Indonesian Republic Number 150, Additional Gazette of the Republic of Indonesia No. 4456) could not
be accepted;
47
Reject the invocation of the applicant regarding Article 17 of the paragraph (4), paragraph (5), and paragraph (6), Section 19, Section 20, Article 21, Section 28, Article 28, Section 29, Article 30,
Article 34, Article 35, Section 36, Article 38, Article 38, Section 39, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, Section 40, 42, Section 43,
Article 44, and Article 46 of the Law No. 40 of 2004 on the National Social Security System (2004 Republic of Indonesia Gazette)
number 150, Additional Gazette of the Republic of Indonesia No. 4456).
So it was decided at a meeting of the Judges ' deliberations attended by the seven Judges of the Constitution of Moh. Mahfud MD as Chairman, Achmad Sodiki, Maria Farida Indrati, Anwar Usman, Ahmad Fadlil
Sumadi, Muhammad Alim, and M. Akil Mochtar, respectively as Member, at day Wednesday, date eight, month August, year two thousand twelve, and spoken in the plenary session of the Constitutional Court open to the public
at on Tuesday, the fourteenth, August, year two thousand twelve, by the eight Justices of the Constitution of Moh. Mahfud MD as the Chief of the Members, Achmad Sodiki, Maria Farida Indrati, Anwar Usman, Ahmad Fadlil Sumadi, Muhammad Alim, M. Akil Mochtar, and Hamdan Zoelva, respectively-
respectively as Members, with an accompanied by Ery Knight Pamungkas as
Panitera Replace, as well as attended by the Applicants, the Government or the representing, and the People's Representative Council or the representative.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd.
Achmad Sodiki
ttd.
Maria Farida Indrati
ttd.
Anwar Usman
ttd.
Ahmad Fadlil Sumadi
48
ttd.
Muhammad Alim
ttd.
M. Akil Mochtar
ttd.
Hamdan Zoelva
PANITERA REPLACEMENT,
ttd.
Ery Knight Pamungkas
