Komnas Haji: Minister of Religion Authorized to Determine Special Haji Quota Allocation Under Law No. 8/2019

Mustolih Siradj, the chair of Komnas Haji dan Umrah, highlighted the case involving former Minister of Religious Affairs Yaqut Cholil Qoumas related to the determination of the Hajj quotas for 2023-2024. He stressed that the Minister has the authority to determine the distribution of both regular and special Hajj quotas. ‘Is the authority to allocate quotas the authority of the Minister of Religion, and is a 50-50 split correct or not? For us, it is indeed the minister’s authority,’ Mustolih told reporters on Thursday (5/3). He explained that the authority is set out in Law Number 8 of 2019 on the Administration of Hajj and Umrah. ‘In Article 9 of Law No. 8 of 2019, it is stated that if there are additional quotas, the minister determines the additional quota. So it is not discretionary.’ Mustolih emphasised that Article 9 cannot be read in isolation from Article 8, which concerns Hajj quotas in general, including regular and special quotas. ‘Only then does Article 9 become the basis used by the minister at the time, namely Gus Yaqut, to allocate because that is the minister’s authority.’ The text of Article 9 of Law No. 8/2019 cited by Mustolih reads: Article 9(1): ‘In the event of addition of Indonesian Hajj quotas after the Minister has set the quotas as referred to in Article 8(2), the Minister determines the additional Hajj quotas.’ Article 9(2): ‘The provisions on filling the additional Hajj quotas are set out by Ministerial Regulation.’ Regarding quota distribution, Yaqut Cholil Qoumas previously asserted that this policy lies within the jurisdiction of the Government of Saudi Arabia. Indonesia, he said, is bound by regulations and bilateral agreements agreed by both countries. ‘Hajj’s jurisdiction is in Saudi Arabia, so it is not solely the Indonesian government’s authority. We are bound by Saudi regulations, including quota distribution, because there is a MoU as the basis,’ Yaqut said at the South Jakarta District Court on Tuesday, 24 February. He noted that the Minister of Religious Affairs’ Decree (KMA) issued at the time was based on that agreement. According to Yaqut, the only consideration in quota distribution is the principle of safeguarding pilgrims’ lives, given the capacity limitations in Saudi Arabia. ‘The only consideration I had was the safety of the pilgrims,’ he asserted. Yaqut’s legal team added that KMA 130/2024 is a valid administrative product and does not meet elements of abuse of authority. They referred to the Ta’limatul Hajj international agreement which allocates an additional quota of 10,000 for each of the regular and special zones. ‘Using KMA 130/2024 as the basis for proof does not satisfy the sufficiency of evidence to conclude acts of unlawful conduct or abuse of authority. KMA 130/2024 is positioned as an administrative decision issued by the Minister of Religious Affairs in executing the duties of administering the Hajj, including considering on-the-ground conditions for the smooth operation and safety of pilgrims, and based on the Ta’limatul Hajj agreement which lists 10,000 additional quotas for the Regular Zone and 10,000 for the Special Zone.’ In the pre-trial application, Yaqut’s counsel argued under the presumption of legitimate cause that KMA 130/2024 should be considered lawful and not unlawful as long as it remains in force and has not been cancelled, because it is the basis to prevent government functions from stopping and to keep the Hajj administration running with emphasis on efficiency and safety for pilgrims.