Former Constitutional Justice Harjono views that Constitutional Court is able to interpret Article 6A 1945 Constitution as irrelevant if the competing presidential candidate only bears two pairs, of which likely to be happened in the upcoming July 9th election. Two pairs of the competing candidates may be completed within just one round.
It was delivered by Harjono as the expert in the Judicial Review trial of Act 42/2008 (UU Pilpres). In his statement, Harjono who was involved in the deliberation of Article 6A of 1945 Constitution explained the sentence Elected President and Vice President gained more than fifty percent votes, with at least twenty percent votes in every province that spared in more than a half of all Indonesia’s Provinces, decided with the consideration of the elected pair gained voters in Java and beyond. “But during the time no simulation ever been conducted, about any probability if the formula (verse 4) is finally taking place,” he said in the MK Plenary Room, Jakarta, Monday (23/6).
Harjono simulates the application of Article 6A 1945 Constitution. There were 3 competing pairs in the presidential election, pair A gained 52 percent, pair B gained 45 percent, and pair C gained 3 percent of votes. Pair A and B are advancing through the second round. In the second phase, the pair A gained 52 percent of votes while pair B only gained 48 percent, both pairs’ votes weren’t disbursed in proportional amount nationally. According to the requirement implied in the Article 6A verse (4) 1945 Constitution, pair A is regarded to be the elected pair.
But it could be happened whether pair A gained a single vote less to 50 percent, or whether pair B gained 50 percent plus one vote, but pair B’s votes weren’t spared nationally as the Article required, it will still be considered that the elected is the pair B. “Therefore, they only gained 50 percent plus one vote but the spared votes regulation is not fulfilled in the second round. If we compare that pair A gained 52 percent in the first simulation, the calculation generates that the amount of A’s votes will be bigger physically. Such things generated law problem, the lawmaker should have considered any probability of its regulation,” he explained.
In that case, the percentage calculation of pair B is bigger than pair A’s, but the actual votes are less than pair A’s in the first round. “It could be happened if participating voters are lower in the second round, so the percentage must be decreased too compared to the prior percentage. Now the question is, how many of the actual votes are the 50 percent reflects?” he continues.
Thus, the Court is able to interpret that the Article 6A verse (4) of 1945 Constitution may not be applied if the competing candidates only consist of two pairs. “Therefore, for the two pairs-participating elections, it is better for the Court to decide that it must be held just in one round for the greater good, considering the justice principle and law certainty,” he retained.
Professor of the Public Administration Law, Saldi Isra as the expert plaintiff whose case registered upon number 51/PUU-XII/2014, nods to the similar thing. According to him, the fifty percent-minimum and twenty percent-spared regulation can only be regarded as the bridge between first and second round of the presidential election, when the previous election was participated by many candidates. “When it just involved two pairs of candidates the regulation shall be better left unused” he said. In other words, the submissive sentence in the mentioned Article will still be regarded.
Vacuum of Power
In Accordance to it, Former Constiutional Justice, A.S Natabaya cited that MK is the only institution that has rights to interpret the 1945 Constitution. “We see that there are only two pairs of competing candidates, the Article 6A verse (4) of the 1945 Constitution conveys that the one out of the two pairs must be elected, regarding of its gained votes. KPU may only decide based on that perceptive consideration, and it is MK’s duty to interpret the Constitution,” Natabaya explained.
The other reason, MK necessarily interprets the Article to avoid two-rounded elections whilst there were only two pairs of participating candidates compete in the presidential election. “This must be retained. By 20 October the new President and Vice President must be inaugurated to annul vacuum of power situation,” he said.
Framed for More Than Two Pairs
Home Department’s Expert Staff of Politics, Law, and Inter-institution Relations Reydonnizar Moenek who acted as the Government’s representative stated that presidential elections norms convey in the Article 6A of 1945 Constitution and Article 159 UU Pilpres was framed for more than two participating pairs.
If the regulation still took place in the upcoming election, which is participated by two pairs of candidates, the advancing round may be held, but the percentage may narrow from the previous election.”It may prolong the process and lead to vacuum of power situation. Meanwhile, by 20 October the new elected pair of President and Vice President must be inaugurated, no matter how,” he said. (Lulu Hanifah/mh)
Monday, June 23, 2014 | 19:44 WIB 106