Debating the Criminal Sanction Provision in Relation To Candidate Nomination in Region Head Election

The Constitutional Court held a hearing for judicial review of Law Number 32 Year 2004 on Regional Government (the Regional Government Law) against the 1945 Constitution on Thursday (19 /7). The hearing for case No. 14/PUU-V/2007 was scheduled for the hearing of the statements of the Government, the Peoples Legislative Assembly (DPR), and Witnesses/Experts of the Petitioner.

The petition for judicial review was filed by H. Muhlis Matu with his Attorneys-In-Fact Januardi S. Haribowo, S.H. cs. In his petition, the Petitioner states that the coming into effect of the Regional Government Law, or its Article 58 Sub-Article f in particular, has impaired his constitutional rights. Article 58 Sub-Article f of the Regional Government Law prohibits a person from becoming a Region Head/Vice Head Candidate if the person concerned has once been sentenced to imprisonment for a crime punishable by imprisonment of 5 (five) years or more.

The petitioner intends to nominate himself for Vice Regent Candidate in the Region Head Election in Takalar Regency, South Sulawesi. However, with the application of the aforementioned provision, he is threatened with discontinuation of the process of his nomination because in the past, he was once sentenced to imprisonment for a crime punishable by imprisonment of more than 5 (five) years. The fact was that the criminal act committed by the Petitioner was in the form of attempted murder motivated by a siri [unregistered marriage] problem in Bugis-Makassar community which was concerned with an issue of self-esteem, reputation and dignity of the extended family of the Petitioner.

With the recognition of just legal guarantee, protection, and certainty in the 1945 Constitution, the Petitioner expects that with the elapse of the aforementioned imprisonment period, he would become a free man who has equal rights and opportunity like other citizens both in law and government.

In the petitum of his petition, the Petitioner requests the Panel of Constitutional Court Justices to declare that Article 58 Sub-Article f of the Regional Government Law is contradictory to Article 27 Paragraph (1), Article 28D Paragraph (2), Article 28I Paragraph (2) of the 1945 Constitution and that such provision shall have no binding legal effect.

In response to the abovementioned petition, the Government which was represented by the Director General of Law and Legislation of the Ministry of Law and Human Rights, Abdul Wahid Masru, in the written statement that he read stated that similar provisions like Article 58 Sub-Article f of the Regional Government Law are also found in other laws. “In addition, the Constitutional Court has once conducted judicial review of similar provisions, deciding that the petition can not be accepted. Therefore, in accordance with the principle of nebis in idem, the government requests the Constitutional Court to declare that the petition is rejected or at least to declare that the petition can not be accepted,” said Abdul.

Meanwhile, the Expert presented by the Petitioner, Dr. Chairul Huda, S.H., M.H. explained that a criminal sanction is for the purpose of peoples welfare. It is not intended as an instrument of revenge, but, pursuant to the theory of socialization, for the convict himself to become a good community member.

Chairul added that a criminal sanction must have a time limit so that the person who has served his sentence can have his rights restored, including the right to elect and to be elected. “The flaw with Article 58 Sub-Article f is that it does not cover all those who have been sentenced with, for example, capital punishment or imprisonment of less than five years,” explained the man who is a lecturer of criminal law subject in Jakarta Muhammadiyah University.

If the provision of Article 58 Sub-Article f is intended for measuring the extent of offense, it should not have been the threatened criminal sanction which was made as the standard, but rather the punishment imposed. “It is better for the provision to be changed so as to read: all those who have been threatened and imposed with criminal punishment, must not nominate themselves,” he said.

In opposition to the statement of the Expert presented by the Petitioner, the Peoples Legislative Assembly (DPR) in its written statement read out by DPRs Attorney-In-Fact, Akil Mochtar, stated that Article 58 Sub-Article f constitutes a limitation to the constitutional rights of citizens which is related to moral considerations. Such requirement is reasonable because to assume a position, a person must be able to become a figure or a good model for the community. ”This provision has been made so that regional government is administered by good people and to create a  good and clean government,” explained Akil.

During the interactive session, Constitutional Court Justice Dr. H. Harjono, S.H., MCL asked the Expert of the Petitioner, whether it is normal for an institution to keep its image for which requirements are made. Chairul answered that such requirements are just normal insofar as they are not as debatable as this Article 58 Sub-Article f. Chairul referred to Bung Karnos being imprisoned so many times which does not necessarily mean that he did not deserve to lead the country “It is also the case with MPR Vice Chairman, A. M. Fatwa who was once imposed with criminal sanction with respect to which we do not question his credibility,” added Chairul.

Constitutional Court Justice Prof. Abdul Mukthie Fadjar, S.H., M.S., asked the Government and the Peoples Legislative Assembly regarding since when Article 58 Sub-Article f has existed. Abdul Wahid frankly answered that he did not know exactly when this provision was created. “However, I believe that such sanction has existed since the early times of independence,” Abdul answered. (Wiwik Budi Wasito)

Thursday, July 19, 2007 | 14:49 WIB 174