Chief Justice of the Constitutional Court, Moh. Mahfud MD accompanied by eight other justices as he read the decision for the Review of Act 12 of 2008 about the Second Amendment of Act 32 of 2004 about Regional Government [Article 235 paragraph (2)] and the Review of Act 22 of 2007 about Organizer of General Election Article 5 paragraph (1). In the verdict, The Court decided to reject the entire petition from Petitioners (Head and Members of Manado City Election Commission), Monday (11/4) at the Plenary Courtroom
Jakarta, MKOnline - The Constitutional Court (The Court) decided to reject entirely the petition filed by Head and Members of Manado City Election Commission. That was the verdict read by Chief Justice of The Court, Moh. Mahfud MD accompanied by eight other justices in the Plenary Courtroom. Dolfie Daniel Angkouw, Lucky Aldrin Senduk, Franciscus Daniel Sompie, Suardi Hamzah, and Donald Kagel Monintja were registered as the Petitioners for the case registered by number 36/PUU-VIII/2010.
In the provision part, The Court decided to reject the provisional petition as it was considered inaccurate before the law for some reasons. Firstly, in a judicial review, The Court’s decision was to review abstract norms and not concrete cases like an acquisition of authority to hold a regional election by the North Sulawesi Provincial Election Commission to Manado City Election Commission.
“Secondly, The Court’s decision is prospective in nature in compliance to Article 58 of Act on the Constitutional Court number 06/PMK/2005 on Procedural Guidelines in Judicial Review Case, thus whatever The Court’s verdict for this case will not be applied retroactively on an ongoing concrete case. In this case, the election of Manado City has been held on August 3, 2010 therefore the petition to stop the process of election in Manado City becomes irrelevant,” said one of the justices.
In the main substance, the Petitioners had a different interpretation for Article 235 paragraph (2) of Act 12/2008 which made the Petitioners lost their constitutional rights to receive acknowledgement, security, guarantee, protection and legal certainty fairly as guaranteed by Article 28D paragraph (1), Article 18 paragraph (4) and Article 22E paragraph (5) of the 1945 Constitution. According to The Court, the difference in the interpretation was not a part of the issue on norm constitutionality. The Petitioners themselves were also not treated discriminatively by The Petitioners made inactive from the position of Head and Members of the Manado City Election Commission; but more to an issue on policy and an implementation of carrying out a legislation.
“The Petitioners who are made inactive or dismissed from being members of the Election Commission is not a question on the violation of guarantee, security and legal certainty which is fair, but an administrative disputes so The Court will not consider the contradiction between Article 235 paragraph (2) of the Act a quo with other articles of the 1945 Constitution,” explained one of the justices.
Apart from that, the Petitioners claimed that Article 5 paragraph (1) of Act 22/2007 stating that the Commission was in hierarchy was in contradiction with Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution with a reason that the Commission’s hierarchy was only applied during the Legislative and Presidential Election not in regional election. For the organizing of the regional election, the articles a quo had to be interpreted as conditionally constitutional considering the special duties and functions as regulated in Article 18 paragraph (1) and paragraph (4) of the 1945 Constitution, the Petitioners did not explain about the constitutional loss due to the enactment of Article 5 paragraph (1) of the Act 22/2007.
The article a quo only decided that the position of General Election Commission, Provincial Commission, and Regency/City Commission were in hierarchy. Because the Petitioner used Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution as the touchstone. The Court considered that both Articles were arranging about Human Rights which related to equality befire the law and government also admission, security guarantee and fair legal certainty which did not have anything to do with the Commission’s hierarchy also the loss experienced by the Petitioners being made inactive from their position as Head and members of the Manado City Commission.
“Based on the legal considerations above, The Court do not consider the contradiction between Article 5 paragraph (1) of Act 22/2007 with the Articles in the 1945 Constitution. Therefore, the petitions do not have legal reasons,” he explained
Therefore, in the conclusion, The Court stated that the Petitioners provisional petition was legally unreasonable and the arguments of the Petitioners in the main substance were legally unreasonable. “The Court states in the provision, to reject the provisional petition from the Petitioner. In the main substance, to reject the Petitioner’s petition in its entirety,” stipulated Mahfud. (Lulu Anjarsari/mh/YDJ)
Monday, April 11, 2011 | 20:34 WIB 217