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The Constitutional Court declared Article 214 letter a, b, c, d, and e Act No. 10/2008 about General Election for Members of House of Representatives, City Councils, and Regional House of Representatives (Act on General Election) violated the 1945 Constitution. That was announced by the Chief Justice of the Constitutional Court, Moh. Mahfud MD, in decision reading for case No. 22&24/PUU-VI/2008, Tuesday (23/12), at the Court s Plenary Room.

Case No. 22/PUU-VI/2008 was pleaded by Muhammad Sholeh, a candidate for East Java Regional Parliament for 2009-2014 period in voting area one Surabaya-Sidoarjo from Indonesian Democratic Party of Struggle. The Petitioner demanded the Court to declare Article 55 paragraph (2) and Article 214 letter a, b, c, d, e of the Act violated Article 27 paragraph (1), Article 28D paragraph (1), Article 28D paragraph (3), and Article 28I paragraph (2) of the 1945 Constitution. Meanwhile, Case No 24/PUU-VI/2008 was pleaded by an individual citizens, Sutjipto, S.H., M.Kn. (a Candidate for Indonesian Parliament from Democrat Party), Septi Notariana, S.H., M. Kn., (a Candidate for Indonesian Parliament from Democrat Party) and Jose Dima Satria, S.H., M.Kn., (a future voter in 2009 Election). They demanded the Court to declare Article 205 paragraph (4) and paragraph (5) also Article 214 of Act on General Election had violated Article 1 paragraph (2), Article 6A paragraph (1), Article 6A paragraph (4), Article 22E paragraph (1) and Article 28D paragraph (1) of The 1945 Constitution.

According to the Court, the stipulation in Article 214 of Act a quo which regulated the elected candidate was a candidate who earned more than 30 percent of VRN (Voter Ratio Number), or holding smaller number in rank, in the case that no candidate attained 30 percent of the VRN, or who sat in smaller number in row in the case that candidates earning 30 percent of the VRN were more than the proportional number of seats was unconstitutional, because it was against the substantive meaning of people s sovereignty as explained above and was qualified as against the principles of justice as regulated in Article 28D paragraph (1) of The 1945 Constitution.

That, according to the Court, was a violation on people s sovereignty if people s wish reflected on the choice they made had been ignored in the announcement of legislative members. It would obviously violate people s sovereignty and justice, if two candidates earning an extreme split of votes had to give out their position to candidates with smaller portion of votes because the candidate with smaller portion of votes sat in higher rank in the list.

Seeing  from the dimension of justice in political development, at the moment Indonesia had implemented a direct election system for President and Vice President, City Councils, Regional Heads and Vice; consequently, it would be fair if the election for members of Parliament and Regional Parliaments, which was also directly voting for candidates without reducing the political rights of parties, that every candidate for legislatives could be a legislative member at all levels equal to the struggle and support-getting made.

Besides that, the basic philosophy in every people voting to decide a winner was to be based on most votes, then the decision of elected candidate should be based on whoever legislative candidate got the most votes consecutively , and not to be based on the list arranged.

In other words, every election did not use a double standard anymore, meant that using list number and the vote each candidate got. “Applying regulation which provides the right for elected candidate based on rank in the list means incarcerating people s right to vote to choose according to their heart consent and ignoring the political legitimating level of the elected candidate based on the most number of votes,” stated Constitutional Justice Arsyad Sanusi.

With the existence of acknowledgement for equality and opportunity before the law and before the government as adopted in Article 27 paragraph (1) and Article 28 D paragraph (3) of The 1945 Constitution, meant that every legislative candidate had an equal position and opportunity before the law. Applying different legal stipulations for two identical situations was as unjust as applying similar stipulation for two different situations. According to the Court, the stipulation in Article 214 of Act No. 10/2008 had a double standard so it could be considered as applying different rule for similar situation and it was considered as unfair.

In this Court s decision, Constitution Justice Maria Farida Indrati made a dissenting opinion. (Wiwik Budi Wasito)

Photo: Doc. MK PR/Ardli N

Translated by Yogi Djatnika / MK

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