The Constitutional Court conducted a judicial review on Law No. 23 of 2003 concerning Presidential Election (Presidential Election Law), Law No. 24 of 2003 concerning Constitutional Court (Constitutional Court Law), Law No. 5 of 2004 concerning Amendment to Law No. 14 of 1985 concerning Supreme Court (Supreme Court Law), Law No. 32 of 2004 concerning Regional Government (Regional Government Law), and Law No. 15 of 2006 concerning State Audit Board (State Audit Board Law) against the 1945 Constitution, on Thursday (1/11). The session was held for hearing the testimonies of expert witnesses presented by the petitioners, namely the Chairperson of the National Human Rights Commission, Ifdal Kasim and Criminal Law Expert, Dr. Mudzakkir.

The case number 17/PUU-V/2007 was filed by Hendry Yosodiningrat, S.H., Budiman Sudjatmiko, MSc., M.Phil. and Ahmad Taufik, who represented by their attorneys Ari Yusuf Amir, S.H., and associates. The petitioners raised several questions, namely first, one of the requirements for becoming a Presidential Candidate as set forth in Article 6 sub-article (t) of the Presidential Election Law, which reads: ”Candidates for the posts of President and Vice President must meet the following requirements: having never been imprisoned based on a court decision having obtained permanent legal force for committing a crime which may be subject to an imprisonment for 5 (five) years or more”.

Second, requirements for becoming a candidate for Constitutional Justice as set forth in Article 16 paragraph (1) sub-paragraph (d) of the Constitutional Court Law, which reads: ”To be appointed as a constitutional court, a candidate must meet the following requirements: having never been imprisoned based on a court decision having obtained permanent legal force for committing a crime which may be subject to an imprisonment for 5 (five) years or more”.

Third, requirements for becoming a candidate for Supreme Court Justice as set forth in Article 7 paragraph (2) sub-paragraph (d) of the Supreme Court Law, which reads: ”if necessary, Supreme Court Justices may be appointed not based on the career path system with the following conditions: having never been imprisoned based on a court decision having obtained permanent legal force for committing a crime which may be subject to an imprisonment for 5 (five) years or more”.

Fourth, requirements for becoming a candidate for Regional Head and Vice Regional Head as set forth in Article 58 sub-article (f) of the Regional Government Law, which reads: “Candidates for Head of Region and Deputy Head Region shall be Indonesian citizens meeting the following requirements: having never been imprisoned based on a court decision having obtained permanent legal force for committing a crime which may be subject to an imprisonment for 5 (five) years or more”.

Fifth, requirements for becoming a candidate for member of the State Audit Board as set forth in Article 13 sub-article (g) of the State Audit Board Law, which reads: ”To be appointed as a Member of the State Audit Board a candidate must meet the following requirements: having never been imprisoned based on a court decision having obtained permanent legal force for committing a crime which may be subject to an imprisonment for 5 (five) years or more”;

In the hearing, the Expert Witness presented by the petitioners, Ifdal Kasim, explained that there must be a limitation with clear purpose in order to create public order and a society of good moral, and to protect the fundamental rights of the people. According to Ifdal, requirements limiting the rights of people who have been subjected to a five-year imprisonment so that they cannot hold certain positions, is not in accordance with the limitations contemplated by the Constitution. “Because the 1945 Constitution also guarantee equal rights for people who have been convicted. This means that their rights as citizens have been reinstated including their political rights to participate in government or state administration. Therefore, the inclusion of this requirement have clearly reduce their rights,” Ifdal explained.

Criminal Law Expert from Indonesian Islamic University of Yogyakarta, Dr. Mudzakkir also added that that such limitation is allowed insofar as it is in the context of administrative prerequisites. The competence of those persons must be determined based on certain positions and requirements which are generally applied. “With regard to such criminal sanction without considering the crimes being committed or the types of crime being committed, it would be irrelevant when a person is convicted for unintentionally committing a crime, such as a traffic accident. This certainly will restrain his capabilities. It would be like depriving a convict of his legal rights guaranteed by the Constitution,” said Mudzakkir. (Prana Patrayoga Adiputra)