The Constitutional Court (the Court) held a Plenary Hearing for Judicial Review of Law Number 23 Year 2003 concerning General Elections of President and Vice President (the Presidential Election Law), Law Number 24 Year 2003 concerning the Constitutional Court (the Constitutional Court Law), Law Number 5 Year 2004 concerning Amendment to Law Number 14 Year 1985 concerning the Supreme Court (the Supreme Court Law), Law Number 32 Year 2004 concerning Regional Government (the Regional Government Law), and Law Number 15 Year 2006 concerning the State Audit Board (the State Audit Board Law) against the Constitution of the State of the Republic of Indonesia Year 1945 (the 1945 Constitution), on Tuesday (11/9) at the courtroom of the Constitutional Court, Jakarta.

In Case Number 17/PUU-V/2007 filed by Hendry Yosodiningrat, S.H., Budiman Sudjatmiko, MSc., M.Phil., and Ahmad Taufik with their Attorneys-In-Fact Ari Yusuf Amir, S.H., M.H., Sugito, S.H., Nur Ismanto, S.H., M.Si., Zairin Harahap, S.H., M.Si., and Ahmad Khairun, S.H., M.Hum, the Petitioners request the Panel of Constitutional Court Justices to conduct judicial review of one of the requirements to become Candidates for President and Vice President as regulated in Article 6 Sub-Article t of Law No. 23 Year 2003 (the Presidential Election Law), Candidates for Constitutional Court Justices as regulated in Article 16 Paragraph (1) Sub-Paragraph d of Law No. 24 Year 2003 (the Constitutional Court Law), Candidates for Supreme Court Justices as regulated in Article 7 Paragraph (2) Sub-Paragraph d of Law No. 5 Year 2004 (the Supreme Court Law), Candidates for Regional Heads and Vice Heads as regulated in Article 58 Sub-Article f of Law No. 32 Year 2004 (the Regional Government Law), or Candidates for Members of the State Audit Board as regulated in Article 13 Sub-Article g of Law No. 15 Year 2006 (the State Audit Board Law).

Article 6 Sub-Article t of the Presidential Election Law reads as follows: ”A Candidate for President and Vice President must fulfill the requirement that he/she has never been imposed with a criminal sanction of imprisonment based on a court decision which has been final and binding due to commission of a criminal act subject to a criminal sanction of imprisonment of  5 (five) years or more”. Article 16 Paragraph (1) Sub-Paragraph d of the Constitutional Court Law reads as follows: ”To be appointed as a constitutional court justice, a candidate must fulfill the requirement that he/she has never been imposed with a criminal sanction of imprisonment based on a court decision which has been final and binding due to commission of a criminal act subject to a criminal sanction of imprisonment of  5 (five) years or more”. Article 7 Paragraph (2) Sub-Paragraph d of the Supreme Court Law reads as follows: ”If needed, a supreme court justice can be appointed not based on a career system with the requirement that the candidate has never been imposed with a criminal sanction of imprisonment based on a court decision which has been final and binding due to commission of a criminal act subject to a criminal sanction of imprisonment of  5 (five) years or more”. Article 58 Sub-Article f of the Regional Government Law reads as follows: “A candidate for Region Head and Vice Region Head shall be a citizen of the state of the Republic of Indonesia who fulfills the requirement that he/she has never been imposed with a criminal sanction of imprisonment based on a court decision which has been final and binding due to commission of a criminal act subject to a criminal sanction of imprisonment of  5 (five) years or more”. Article 58 Sub-Article d reads as follows: “shall be 30 (thirty) years of age at the minimum”. Article 13 Sub-Article g of the State Audit Board Law reads as follows: ”To be appointed as a member of the State Audit Board, a candidate must fulfill the following requirement: he/she has never been imposed with a criminal sanction of imprisonment based on a court decision which has been final and binding due to commission of a criminal act subject to a criminal sanction of imprisonment of  5 (five) years or more”;

Whereas according to the Petitioners, such provisions are contrary to the 1945 Constitution, especially the following articles: Article 27 Paragraph (1) which reads as follows: “Without exception, all citizens shall have an equal position before the law and government and shall be obligated to uphold such law and government”, Article 28C Paragraph (2) which reads as follows: “Every person shall have the right to improve him/herself in striving for his/her rights collectively for building his/her society, nation, and state”, Article 28D Paragraph (1) which reads as follows:, “Every person shall have the right to the recognition, the guarantee, the protection and the legal certainty of just laws as well as equal treatment before the law”, Article 28D Paragraph (3) which reads as follows: “Every citizen shall have the right to obtain equal opportunities in government”, and Article 28I Paragraph (5) which reads as follows: “To enforce and protect human rights in accordance with the principle of a democratic constitutional state, the exercise of human rights shall be guaranteed, regulated and set forth in laws and regulations”.

At the hearing, the Government’s opening statement which was read aloud by the Expert Staff of the Minister of Law and Human Rights of the Republic of Indonesia, Ahmad Ubay, stated that such provisions constitute a normal standard for everyone who wants to be, to become, to assume or fill certain positions. “Such provisions have been intended to recruit candidates for good leaders who have appropriate integrity and moral capability, so that the integrity and stability of leadership can be realized” added Ahmad Ubay.

Furthermore, Ubay explained that the Government also considers that the requirements in such provisions constitute a form of protection of public interests by the state. The Government reasons that the requirements contained in such provisions are merely intended to have leaders having flawless track record.

In relation to the argument of the Petitioners that such provisions have given the Petitioners a discriminatory treatment, the Government considers that the matter is of universal nature which is applicable to anybody, meaning that they are applicable either to those having disgraceful records or those not having conducted any disgraceful conduct. Therefore, according to the Government, such provisions do not harm the Petitioners’ constitutional rights.

Age Limit for Region Heads

At the hearing, also presented was the Petitioner for judicial review of Article 58 Sub-Article f of the Regional Government Law which regulates the minimum age limit for region head candidates. This Case Number 15/PUU-V/2007 was filed by Toar Semuel Tangkau, 27 years of age, Chairman of the Regional Representative Council (DPD) of the Functional Group Party (Golongan Karya) of Southeast Minahasa, North Sulawesi, who intended nominate for regent of Southeast Minahasa Regency.

Patrialis Akbar, who was representing the People’s Legislative Assembly (DPR), stated that the minimum age limitation to be a candidate for a certain position has been normally adopted in the legislation system. According to this member of Commission III of DPR RI, the matter such limitation has been intended to become a parameter of a person’s capability and capacity before assuming the position concerned.

Patrialis explained that age limitation can also become a parameter of a person’s maturity, including intellectuality, spiritual intelligence and emotional level. This is especially due to the fact that a region head has a strategic position in society, leading many people.

Similar requirement is also applied for other public offices, such as the minimum age of 35 years of age requirement to become president. “The minimum age requirement to become a constitutional court justice is even higher namely 40 years of age”, asserted the politician from the National Mandate Party.

In tune with the People’s Legislative Assembly (DPR), the Government believes that such age limitation provisions are not intended to close the access for or to diminish the constitutional rights of citizens or as a discriminatory treatment as contemplated in Law No. 39 Year 1999 concerning Human Rights and the International Convention on Civil and Political Rights. “It is impossible for an underage person or a child to be nominated as a candidate for region head or vice head”, concluded Ahmad Ubay.

In relation to the statement of Constitutional Court Justice Soedarsono, SH. concerning the legal policy on such limitation provisions, Patrialis explained that certain requirements to assume public offices are actually differentiated according to each position. He quoted an example the requirement to become a Constitutional Court Justice that a candidate must have statesmanship quality, which is not applied for other positions, even for the presidency. “This does not constitute a discriminatory treatment since it has become a consensus of the whole nation, because our constitution also differentiates such positions.

After hearing the abovementioned statements of the People’s Legislative Assembly (DPR) and the Government, the Chairman of the Panel of Justices stated to the Petitioners’ Attorney-In-Fact, the People’s Legislative Assembly (DPR) and the Government to notify the Registry Office of the Constitutional Court in the event that they would present Experts at the next hearing. (Prana Patrayoga Adiputra & Ardli Nuryadi)