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A initial panel session of judicial review on UU Pemilukada was led by Deputy Chief Anwar Usman on Thursday (2/4) at Plenary Room,the Constitutional Court Building. Photo PR/Ganie  

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) was held an initial panel session on Act No. 8 Year 2015 of Act Amendment No 1 Year 2015 of the Government Regulation in Lieu of Law Stipulation No. 1 Year 2014 of Governor, Regent, and Mayor Election Enacted to Act (Undang-Undang Nomor 8 Tahun 2015 tentang Perubahan Undang-Undang Nomor 1 Tahun 2015 tentang Penetapan Peraturan Pemerintah Pengganti Undang-Undang Nomor 1 Tahun 2014 tentang Pemilihan Gubernur, Bupati, dan Walikota Menjadi Undang-Undang) –Case No. 38/PUU-XII/2015– filed by Ali Nurdin on Thursday afternoon (2/4) at Plenary Room, the Constitutional Court Building. Applicant’s Attorney Andi Syafrani said that the Applicant was a Regent candidate in Pandeglang Regency (Kabupaten Pandeglang) who felt detrimental with the provision on Article 7 letter s Act a quo. The provision was also regulated that the members of the House of Representatives (Dewan Perwakilan Rakyat –DPR), the Regional Representatives Council (Dewan Perwakilan Daerah –DPD), and the Provincial Council (Dewan Perwakilan Rakyat Daerah –DPRD) were only need to inform their candidacy to their chairman, so they were no need to resign.  

“Just need to inform candidacy rather than resign. This is what the Applicant considers could detrimental to him when later Article 7 letter s continues to be implemented,” said Andi in front of judge panel led by Deputy Chief of the Constitutional Court (Wakil Ketua Mahkamah Konstitusi) Anwar Usman.

According to Andi, Article a quo was contrary to the constitution norm which ensures equal legal position and governance as stipulated on Article 27 (1) the 1945 Constitution (Undang-Undang Dasar 1945). Moreover, Andi said that there were different treatments related with the candidates from the Indonesian Military (Tentara Nasional Indonesia –TNI), the National Police (Kepolisian Republik Indonesia –Polri), civil servants (Pegawai Negeri Sipil –PNS), or State-owned Enterprise (Badan Usaha Milik Negara –BUMN) / Provincial Administration-owned Enterprises (Badan Usaha Milik Daerah –BUMD) officers that required to resign. Meanwhile, legislative members were only need to inform their candidacy, rather than resign. According to Andi, this condition caused injustice.   

“It means when they did not elected, they could restore to their previous position as legislative members. This is an unfair regulation which treats some people different others,” explained Andi.

Moreover, Andi was also stated that Article a quo contrary to democracy principles as stipulated on Article 18 (4) and Article 28D (1) the 1945 Constitution (Undang-Undang Dasar 1945). Therefore, the Applicant asked to judge panel for granted their petition and declared Article a quo conditional unconstitutional. According to Andi, when Article a quo declared unconstitutional, so there was a legal vacuum related with regional head candidacy which candidates from legislative members.

“Granting the Applicant petition on its entirely. Second, declaring Article 7 letter s Act No. 8 Year 2015 contrary to the 1945 Constitution to the extent it does not interpreted as ‘inform resign due to’, so there is an editorial additional, Your Majesty,” explained Andi.

After listening the petition points, Constitutional Judge Wahiduddin Adams gave advice so the Applicant strengthen their arguments on why conflict of interest contrary to the constitution. It was because when referred to the minutes of legislation discussion, added Wahiduddin, regulation on conflict of interest based on occurred experiences on regional election.

“The government reason to rule this (conflict of interest) is based on recent and past experiences,” said Wahiduddin. “Try to give examples, the incumbent relation is not as described that cause this provision,” added Wahiduddin.

Meanwhile Constitutional Judge Muhammad Alim reminded that there were the MK Verdicts that related with the Applicant’s petition. “There are the MK Verdicts related with candidates who have position as state official such as Regent. That is common position, while the DPR is collective. There are verdicts on it, please take a note on that,” said Alim. Moreover Alim was also asked the Applicant to revise and complete petitum editorial on the petition. Then Constitutional Judge Anwar Usman reminded the Applicant to revise the petition within a maximum period of 14 days.    

Contacted separately, Ali Nurdin said that he is not the BUMN or BUMD officers, not from the military or police, and also not a civil servant, so there was no obligation for him to resign as stipulated on Article a quo. However according to him, the resign mandated for civil servants, the BUMN/BUMD officers, military men or police was essentially they acquired the State’s facilities, similar with legislative members. Moreover, Ali explained that no resign provision applied for candidates from legislative members would cause unfair competition for other candidates because legislative members remain to acquire the State’s facilities.

“If there is no resign provision for the DPR members, the candidacy running considered as political competition will be unfair. There are some candidates who allowed getting support from the State, but another candidate not allowed, whereas our constitution stated that every citizens have equal position before the law,” explained Ali whose status as Vice Dean of Universitas Mathla’ul Anwar Banten. 

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