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Prinsipal Applicant Effendi Ghazali attends verdict announcement session on Act of Regional Elections, on Tuesday (29/9) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) partially grants Effendi Ghazali’s petition on Act Number 8 Year 2015 of Regional Elections (Undang-Undang Pilkada). In the verdict, the Court declares regional elections that only registered by one candidate pair could be held if election organizer –in this case is the KPU– has attempted to fulfill the requirement of two candidate pairs. Thus, regional elections are not depended on the requirement of two candidate pairs.

“Declares grant Applicant’s petition in its partially,” said Chief Justice Arif Hidayat when read Court Verdict Number 100/PUU-XIII/2015.

The verdict announcement session is held on Tuesday (29/9), at Plenary Room, the Constitutional Court Building.

According to the Court, the legislator of Act a quo intends to bring two candidate pairs for regional election contestation. However, the legislator doesn’t provide solution if the requirement of two candidate pairs is not fulfilled. “Thus, there will be a legal vacuum if the requirement of two candidate pairs is not fulfilled. Regional elections cannot be held due to such legal vacuum,” said Constitutional Justice Suhartoyo when read Court’s Consideration.

The Court argues such legal vacuum threaten people’s rights to elect and to be elected due to two reasons. The first is, election delay will remove people’s rights to elect and to be elected in scheduled regional elections. The second is, there is still no guarantee for people’s rights to elect and to be elected on rescheduled regional elections. The cause of people’s rights fulfillment inability is still exist although regional election delayed, which is the requirement of two candidate pairs 

Therefore according to the Court, election delay caused by the requirement of two candidate pairs is contrary to the 1945 Constitution. “In order to fulfill citizens’ constitutional rights, regional elections shall be held although there is only single candidate pair, after being attempted earnestly to fulfill the requirement of two candidate pairs,” said Suhartoyo.

Election Mechanism

The Court decides that single-candidate election can be done if election organizer has attempted to fulfill the requirement of two candidate pairs. The Court considers election organizer has conducted the provision in Article 49 (1) until (9) Act of Regional Elections (for Governor/Deputy Governor elections) and the provision in Article 50 (1) until (9) Act of Regional Elections (for Regent/Vice Regent elections and Mayor/Deputy Mayor elections).

The Court assesses referendum-like ballot is the solution for single-candidate election. Voters are required to declare ‘Agree’ or ‘Disagree’ in election ballot regarding the single candidate. If the most vote saying ‘Agree’, the single candidate is appointed as elected regional head and deputy head. Meanwhile, if the most vote saying ‘Disagree’, the single candidate is not appointed and the election will be postponed until the next regional election.

“Such delay is not contrary to the Constitution because people itself determine the delay by giving ‘Disagree’ vote,” explained Suhartoyo.

In order to run such process, the provision in Article 49 (9) Act a quo which stated ‘Provincial Election Commission re-open Governor-Deputy Governor candidate registration within 3 days after the delay of stages referred in paragraph (8)’ (‘KPU Provinsi membuka kembali pendaftaran pasangan Calon Gubernur dan Calon Wakil Gubernur paling lama 3 (tiga) hari setelah penundaan tahapan sebagaimana dimaksud pada ayat (8)’) shall be interpreted ‘including determining one Governor-Deputy Governor candidate pair in terms of prior to the period of 3 days passed but still there is only one candidate pair’ (‘termasuk menetapkan satu pasangan Calon Gubernur dan Calon Wakil Gubernur peserta Pemilihan dalam hal setelah jangka waktu 3 (tiga) hari dimaksud telah terlampaui namun tetap hanya ada satu pasangan Calon Gubernur dan Calon Wakil Gubernur’). Similar interpretation is also applied for the provision in Article 50 (9) which regulates reopening registration of Regent-Vice Regent candidates and Mayor-Deputy Mayor candidates, as well as other related Articles, which are Article 51(2) and Article 52 (2) Act a quo.  

However, Constitutional Justice Patrialis Akbar has dissenting opinion in the Verdict Number 100/PUU-XIII/2015. According to him, the existence of single candidate basically negates contestation. He assesses that election without contestation is not in accordance with free, fair, and confidential principle (Luber jurdil). Moreover, he assesses that people’s rights to elect and to be elected will be reduced by single candidate existence because voters are given artificial choice.

Meanwhile, The Court declares Surabaya residents’ petition (Case Number 95/PUU-XIII/2015) and Surabaya deputy mayor candidate Wisnu Sakti Buana’s petition (Case Number 96/PUU-XIII/2015) inadmissible.

In Court’s Consideration, the Court assesses petition argumentations regarding Applicant’s constitutional loss are based on actual condition during the petition filed, which is the lack of two candidate pairs in Surabaya Mayor election. However, the condition has been changed when both petitions adjudicated. The requirement of two candidate pairs has been fulfilled, as announced by Surabaya City Election Comission (KPU Kota Surabaya) and stipulated in Surabaya City Election Commission Decree Number 36/Kpts/KPU-Kota-014.329945/2015 concerning the Stipulation of Candidate Pairs in 2015 Surabaya Mayor and Deputy Mayor Election, dated September 24, 2015. 

Thus, the Court considers argumentations on Applicant’s constitutional loss are irrelevant and Applicants lost their legal standing in petitions a quo. (Lulu Hanifah/IR/Prasetyo Adi N)

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