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Afdoli as Principal Applicant delivered petition points at inaugural session of judicial review on UU Pemilukada, on Wednesday (22/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie. 

 

 

Act Number 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) was filed by formal and material. The Act was passed by President Joko Widodo on March 18, 2015.

The petition was filed by a civil servant, Afdoli. The Applicant assessed Act a quo was formally didn’t fulfill the requirement of act establishment. According to him, academic papers were needed in the act establishment. However, the Act a quo was only discussed 3 times within 7 days work and then had managed to change the basic norms of Act 1/2015.  

“The amendment had reached its basic principle, which is amends the regional elections which elected by the people democratically,” said him at the inaugural session of case number 46/PUU-XIII/2015 at Plenary Room, the Constitutional Court Building on Wednesday (22/4).

Meanwhile on the material review, the Applicant delivered three points of his petition. First, regional election shall in accordance with the provision of Article 18 (4) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945) which stated governors, regents, and mayors are region head at provincials, regencies, and cities level who elected democratically.   

“Secara jelas dan tegas, rakyat ini menyatakan bahwa yang dipilih secara demokratis adalah gubernur, bupati, dan walikota. Namun di dalam perubahan dipilih secara paket bersama wakilnya,” jelasnya.

“"It is clear and unequivocal, the people state that those who democratically elected are governors, regents and mayors. But in the amendment, it elected along with their deputies," he explained.

Second, the Applicant sued the substance of Article 7 letter s, t, and u Act 8/2015 related to the requirements of region head candidate. According to him, there was discrimination for civil servants who will run for regional election because they were required to resign, either from their job or position. Other candidates, such as state enterprise (Badan Usaha Milik Negara –BUMN) officials, were only required to resign from their position, while they still on their job.

“The candidates from legislative members or legislative head are remain in their job and position, as well as incumbents because (requirement to resign) is not mentioned and had decided by the Constitutional Court that incumbents aren’t (required to) resign from their position,” explained him.

And last, the Applicant assessed there were discrimination to independent regional head candidates. According to the Applicant, independent candidates used number of voters’ data as basis, while candidates from political parties used valid votes’ data. “Why independent candidates should use population data as the basis? Whereas logically, when we collect identity card (Kartu Tanda Penduduk –KTP), we count on people who have the KTP, and it is odd that the political parties used valid voters’ data,” added him.

Therefore, the Applicant filed a provision, which requested the Constitutional Court ordered the General Election Commission (Komisi Pemilihan Umum –KPU) to stop or at least postpone regional elections until the Constitutional Court released the verdict of case a quo which had legal binding.

The Applicant also requested to the Constutional Court to declare several articles reviewed contrary to the UUD 1945 and had no legal binding.

Responded to the petition, Justice Panel led by Constitutional Justice I Dewa Gede Palguna advised to the Applicant to affirm his legal standing. The panel also emphasized the provision in petitum (claim basis) wasn’t regulate on Act of Constitutional Court (Undang-Undang Mahkamah Konstitusi –UU MK). “So, it usually would decide together with the case principle,” said him.

Other Constitutional Justice Wahiduddin Adams advised the Applicant to clarify the norms which filed to be reviewed on its constitutionality. “On Article 51A number 5 UU MK that material review of article, paragraph, or part shall be mentioned.  So, it isn’t as whole, unless you review (the norms) formally,” explained him.

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