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Constitutional Court grants Judicial Review over Act 42/2008 about presidential election as filed by Constitutional Lawyer Forum. The decision leads to establishment of one-round election for the 2014’S Presidential Election.

“Decides and granting the Plaintiff’s lawsuit entirely,” Chief of MK Hamdan Zoelva recited the Sentence at MK Plenary Room, Thursday (3/7).

Article 159 verse (1) Act of Presidential Election was one to be pleaded to get through under Judicial Review. Constitutional Lawyer Forum cited that the elected presidential pair must be gaining more than 50 percent with at least collecting 20 percent votes in all provinces spread over Indonesia.  

On its pleadings, MK stated Article 159 verse (1) Act of Pilpres opposed UUD 1945 as it isn’t interpreted to “invalid to apply for 2 pairs of presidential pairs”.  

MK sees that, if the election only comprised two pairs, the elected pair is the one who gained more votes as determined on Article 6A verse (4) 1945 Constitution, so there is no use of conducting second round election.

According to the Court, the decision to elect president directly is meant to accommodate People’s sovereignty. President of Indonesia is the one who backed by strong legitimate support from the people. In accordance to this, Article 6A verse (3) was given a birth while its derivative later revealed, the Article 159 verse (1) Act of Presidential Election.

“This requirement was meant to avoid focused elections in Java, as the island itself conveys half of the total voters,” Justice Muhammad Alim said over the Court’s legal consideration.

In the matters of only two pairs will be participating in the upcoming elections, the Court sees the pairs have fulfilled representative requirement for all over Indonesia. “Therefore, for good measure of representing people all over Indonesia has been fulfilled,” he added.

To that consideration, Article 159 verse (1) Act of Presidential Election must be applied if only the participating candidates comprised more than two pairs. In other words, if only two pairs of candidates participating in the election, the winner can be decided without take any consideration of the requirement of spread 20 percent of votes in all provinces in Indonesia.  

Previously, Constitutional Lawyer Forum, Perludem and two individual Applicants filed a Judicial Review over Article 159 verse (1) Act of Presidential Election due to the multi-interpretation impression if related to Article 6A verse (3) and verse (4) 1945 Constitution.  

Article 6A verse (3) 1945 Constitution says, “A pair of President and Vice President Candidates who gained more than fifty per cent from total amount of votes, with at least twenty per cent of all votes which spared in more than a half of all provinces in Indonesia, are inaugurated to be the President and Vice President.”

Article 6A verse (4) 1945 Constitution says, “In case no presidential candidates are chosen, two tops pairs must undergo another direct election, and the pair who gained most votes will be inaugurated as President and Vice President.”

Article 159 verse (1) Act of Pilpres said, “Elected Pair is the pair who gained more than fifty per cent from the total votes with the initial of minimal twenty per cent votes from all provinces spared in at least half of all provinces in Indonesia.”

Dissenting Opinion

Meanwhile Judge Patrialis Akbar and Wahiddudin Adams have dissenting opinion over the decision to one round election. According to Patrialis, Article 159 verse (1) Act of Pilpres is unconstitutional, but in conditional. He viewed that the election may occur in one round but may as well calculate in two stage of calculation.

“If the fifty percent requirement failed to adjudicate on the elected president, the latter requirement must be calculated to decide on the elected pair,” he said.  

According to Wahiddudin, Pilpres needs to be “closed competition” so the winner can’t be decided just because the pair won in imbalance number in all provinces partially, thus the requirement of Article 159 verse (1) is still needed. “For that consideration, I believe that the Application should have been rejected entirely,” he said. (Lulu Hanifah/mh/kun)

 

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