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The Constitutional Court held the second trial for the judicial review on Act No.12/2008 on the second amendment of Act No.32/2004 on Regional Government (UU Pemda) towards the 1945 Constitution pleaded by the Governor of Lampung, Drs. H. Sjachroedin ZP, S.H, Tuesday (8/7), with hearing the information from the Government, Parliament, and two other experts from the Petitioner as the agenda.

In the case No. 17/PUU-VI/2008 the Petitioner argued that the enactment of Article 58 letter q and the explanation of the act a quo, also Article 233 Paragraph (2) of Act No.32/2004 had caused some constitutional loss on him.

“By regulating that incumbent regional head/vice has to resign since the registration, the Petitioner considers Article 58 letter q and the explanation of the Act a quo to be discriminative,” explained the Petitioner’s Legal Counsel, Susi Tur Andayani, in the previous trial, (4/6).

There were several reasons for the Petitioner to consider that the Article a quo was discriminative. First, the Act regulated differently to the other public officers who were not incumbent. Second, the Act only applied to the position of regional head and vice. Not all public officers taking part in the election candidates treated similarly according to Article 58 letter q and the explanation of the Act a quo. “Hence, the enactment of the Article and the explanation is against the principle of fairness incorporated in the principle of good governance, which required equal treatment to all citizens,” said Susi at that time.

Another reason was that the term of office as the Governor of Lampung ended in June 2, 2009; meanwhile, the Petitioner registered to be a candidate in regional election in May 28, 2008. Therefore, the Petitioner argued that the enactment of article 58 letter q and the explanation so far as concerning the phrase “cannot be recalled” had severely damaged the Petitioner’s constitutional right, because if the Petitioner participated in the regional election candidacy then the Petitioner’s right to reign would be lost if in the election he was not re-elected.

Concerning Article 233 of the Act a quo, the mentioned Article was considered to injure the Petitioner’s constitutional rights guaranteed by the stipulation in Article 28D paragraph (1), Article 28I paragraph (2) and (5) of the 1945 Constitution.the enactment of the article had caused the Petitioner to lose his right for more than a year to end his term of office as the Governor of Lampung. His position as the Governor of Lampung would come to end in June 2, 2009. Since on May 28, 2008 he registered himself in the election candidacy, the Petitioner had to resign from his position.

With those reasons, the Petitioner requested the Constitutional Court through the its decision to state that Article 58 letter q of Act No. 12/2008 and the explanation of the Article were against the 1945 Constitution. 

Meanwhile, in the trial, the Government represented by the General Director of Government Decree from the Department of Law and Human Rights, Abdul Wahid Masru and the Parliament represented by their Legal Counsel, Lukman Hakim Syaefudin, in the first response they both stated that the resignation as a requirement for incumbents was aimed at making the election fairer and avoiding the abuse of powerwhich may be done by the winning regional head.

Dr. Taufiqurrohman Syahuri, S.H., M.H., as the first expert from the Petitioner’s side said that there had been a discrimination on the Lampung Governor candidate by the existence of Article 233 Paragraph (2) and the explanation of Aricle 58 letter q with the phrase “that can not be recalled” had shown a new norm that was different from the stipulation in the article. Therefore, the resignation of the incumbent that can not be recalled would injure the incumbent considering the term of office for the following one year,” he said.

Dr. Yuswanto, S.H., M.H., speaking as the second expert, highlighted the existence of Article 233 Paragraph (2) and the explanation of Article 58 letter q that had disrupted the law certainty and the equality before the law. In Indonesian legal world, revealed Yuswanto, we only heard the incumbent in regional head/vice that had to resign before participating in the election. “Whereas, we have never heard the incumbent of President or Vice President that had to resign before participating in the Presidential Election,” he said.

Besides that, Yuswanto also said that the stipulation in Article 58 letter q was not fair because it was not applied to the member of the Boards (The House, City Council, and Regional Parliament that wished to compete in the regional head candidacy.

On the statements of both experts, Constitution Justice Mahfud MD also questioned the same thing, why there was a stipulation that it could not be recalled in fact the term of office was still quite long. “Then in the Department of Home Affairs, isn’t there a similar case lately where there was an officer that had stepped down by still could return?” he asked.

Responding to the question, Lukman Hakim said that the implementation of the explanation of Article 58 letter q with the phrase “can not be recalled” was intended to show the level of seriousness of the candidate oneself and for the sake of legal certainty. “If he could be recalled, it would certainly cause a law certainty from the resignation letter itself,” explained the Member of Commission III of the House of Representatives.

Besides that, continued Lukman, the enactment of the resignation clause for incumbents in regional election was due to the risk of abuse of power which was considered highly potential to be possessed by the regional head. There was a bureaucracy and hierarchy between the top and their subordinates, in which the regional heads could use their authorities to make them re-elected. (Adiar Adrianto translated by Yogi Djatnika)

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