The Constitutional Court declared that several articles in Law No. 32 Year 2004 concerning Regional Government (the Regional Government Law) which give the opportunity only to a political party or coalition of political parties and which ignore the constitutional rights of independent candidates in the Region Head Election are contradictory to the 1945 Constitution. This was declared in the hearing for the pronouncement of decision for case Number 5/PUU-V/2007 filed by Ranggalawe, on Monday (23/7).

Articles declared as having no binding legal effect are among others: Article 56 Paragraph (2) which reads, ”Candidate pair as intended in Paragraph (1) shall be nominated by a political party or coalition of political parties”; Article 59 Paragraph (1) to the extent it contains the phrase “nominated by a political party or coalition of political parties”; Article 59 Paragraph (2) to the extent it contains the phrase ”as intended in Paragraph (1)”; Article 59 Paragraph (3) to the extent it contains the following phrases “A political party or coalition of political parties is obligated”, ”to a greatest possible extent”, and “and shall further process the candidate nominee concerned”.

Lalu Ranggalawe, DPRD member of Lombok Tengah Regency who filed this petition argues that the Regional Government Law particularly Article 56 Paragraph (2), Article 59 Paragraph (1), Paragraph (2), Paragraph (3), Paragraph (4), Paragraph (5) Sub-Paragraph a, and Paragraph (5) Sub-Paragraph c, Paragraph (6) and Article 60 Paragraph (2), Paragraph (3), Paragraph (4), Paragraph (5), have diminished the meaning of democracy as mandated by Article 18 Paragraph (4) of the 1945 Constitution.

The aforementioned articles, according to Lalu, only give the right to nominate/propose candidate pairs for Region Head/Vice Head to political parties or coalitions of political parties and close the opportunity for independent candidate pairs. Lalu also linked the admission of independent candidates in Nanggroe Aceh Darussalam province [Article 67 Paragraph (1) Sub-Paragraph d of Law No. 11 Year 2006 concerning Aceh Government].

In response to the matter, in the legal considerations part of its decision, the Constitutional Court explains that the provision of Article 67 Paragraph (1) Sub-Paragraph d of the Aceh Government Law which gives the opportunity to independent candidates to nominate for regional head/vice head is in fact not contradictory to Article 18 Paragraph (4) of the 1945 Constitution.

According to the Constitutional Court, the granting of the opportunity to independent candidates is not an act which must be taken due to an emergency situation in the state administration, but to give the opportunity by the lawmakers for a more democratic implementation of regional head/vice head elections. In other words, the lawmakers, in formulating both Article 56 Paragraph (1) of the Regional Government Law and Article 67 Paragraph (2) of the Aceh Government Law, do not violate the provision of Article 18 Paragraph (4) of the 1945 Constitution.

Therefore, the Constitutional Court is of the opinion that the nomination of independent candidates for region head/vice head in regions other than Nanggroe Aceh Darusalam province must be provided in order to avoid dualism in implementing the provision of Article 18 Paragraph (4) of the 1945 Constitution. Such dualism will allow violations of citizens rights guaranteed by Article 28D Paragraph (1) and Paragraph (3) of the 1945 Constitution.

However, such purpose and objective can not be achieved with the Constitutional Court granting the entire petition of the Petitioner because this will create an understanding that the nomination for region head/vice head by political parties is also contradictory to the 1945 Constitution. Whereas, that which is intended is that in addition to nomination through political parties, the nomination of independent candidates for region head/vice head must also be allowed.

In this connection, the Constitutional Court also asserted that the court is not a lawmaker authorized to make any addition to the formulation of a law being reviewed. However, the Constitutional Court can erase words or expressions in a provision of a law so that the substance of the article, paragraph and/or any other part of the law is not contradictory to the 1945 Constitution. Meanwhile, it is the job of the lawmakers to formulate any new substance which must be added to a certain law.

For the nomination of independent candidates conducted not through a political party or coalition of political parties to be allowed for region head/vice head election, the Constitutional Court is of the opinion that the petition for review of several articles of the Regional Government Law petitioned must be granted partly by erasing the entire or certain part of the following articles:

With respect to this Decision of the Constitutional Court, three Constitutional Court Justices namely H. Achmad Roestandi, I Dewa Gede Palguna, dan H.A.S. Natabaya have a dissenting opinion. (Luthfi Widagdo Eddyono)