(Left-Right) Expression of Applicant’s Attorney Heru Widodo and Supriyadi Adi after hearing judicial verdict on Act of Regional Elections, on Wednesday (8/7) at Plenary Room, the Constitutional Court Buiding. Photo PR/Ganie

The Constitutional Court (Mahkamah Konstitusi –MK) granted judicial review petition that reviewed the provision which prohibited regional head candidates who had conflict of interest with the incumbent. The Court decided the provision which regulated on Article 7 letter r and its elucidation Act Number 8 Year 2015 of Act Amendment Number 1 Year 2015 of Government Regulation in lieu of Law Stipulation Number 1 Year 2014 of Governor, Regent and Mayor Elections Enacted to Act –later known as Act of Regional Election, was unconstitutional and had no legal binding. According to the Court, the provision contained discriminative norms.

“The provisions a quo is clearly (and recognized by the legislators) contain distinguished treatment which solely based on someone’s birth and blood ties. Article 28I (2) the 1945 Constitution stated: each person entitled to be free from discriminative treatment under any basis and entitled to obtain protection from any discriminative treatment,” explained Constitutional Justice Patrialis Akbar when read Court’s Opinion in Verdict Number 33/PUU-XIII/2015 on Wednesday afternoon (8/7) at Plenary Room, the Constitutional Court Building.

The Court argued, even restriction on citizen candidacy was allowed in law democratic state, it should not contained discriminative provisions. The Court understood that the prohibition of conflict of interest was intended to create fair competition among candidates, so it could prevent ‘political dynasty’ which recently grown in many regions.

However according to the Court, the prohibition of conflict of interest as stipulated in Article 7 letter r Act of Regional Elections would be difficult to be implemented, particularly by regional election organizer. It was because the interpretation of phrase ‘have no conflict of interest with the incumbent’ was depended on each person interpretation which appropriate with their interest. In other word, it certainly no common view towards the phrase ‘have no conflict of interest with the incumbent’ and led to lack of legal certainty. Whereas, legal certainty on the interpretation of this phrase became significant in determine citizen’s candidacy right which guaranteed by the Constitution.

Moreover, the Court argued that the restriction should apply to the incumbent, instead to their relatives, colleagues, or particular groups. The incumbent had many advantages as well as the possibility of authority abuse. Incumbent relatives or particular groups only could gather advantages if the incumbent gave roles or involvement to them, whether it directly or indirectly conducted.   

Towards such possibilities, the restriction should be applied to the incumbent and formulated in the Act a quo. Related to the elucidation of Article 7 letter r Act of Regional Elections, the Court asserted the elucidation of an Act contrary to the 1945 Constitution if contained or formulated new norm.

Legislators Shall Resign

In the petition, the Court also decided the provision which required legislative members to notify their candidacy to respective chairman, was conditionally unconstitutional. According to the Court, the provision regulated on Article 7 letter s Act of Regional Elections should be interpreted ‘resign since candidates determined meet the requirements as regional head or deputy head candidates for legislative members, by the General Election Commission or the Central Information Commission’.

“Have no legal binding if it didn’t interpreted: resign since candidates determined meet the requirements as Governor candidates, Deputy Governor candidate, Regent candidates, Vice Regent candidates, Mayor candidates, and Deputy Mayor candidates for House of Representatives (Dewan Perwakilan Rakyat –DPR) members, Regional Representative Council (Dewan Perwakilan Daerah –DPD) members, or Regional Legislative Council (Dewan Perwakilan Rakyat Daerah –DPRD) members, which determined by the General Election Commission (Komisi Pemilihan Umum –KPU) or the Central Information Commission (Komisi Informasi Pusat –KIP),” said Chief Justice Arief Hidayat read Court Verdict.  

Therefore, legislative members were obliged to resign if they had determined as regional head candidates

Besides Case Number 33/PUU-XIII/2015, the Court also declared verdict towards other cases which had similar petition materials, which were Case Number 34/PUU-XIII/2015 filed by Aji Sumarno, Case Number 37/PUU-XIII/2015 filed by Lanosin ST. Bin H. Hamzah, Case Number 38/PUU-XIII/2015 filed by Ali Nurdin, Case Number 71/PUU-XIII/2015 filed by Rahadi Puguh and Case Number 79/PUU-XIII/2015 filed by Andi Irwan Hamid. Due to its similar petition points, the Court decided Court consideration of Case Number 33/PUU-XIII/2015 applied mutatis mutandis towards petitions a quo. Therefore, the petition of Case Number 34, 37, 38, 71, 79/PUU-XIII/2015 declared inadmissible. (Triya IR/ Lulu Anjarsari/ Panji Erawan/Prasetyo Adi N)