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Applicant’s Attorney Ridwan Darmawan delivers petition points at preliminary session on Act of Regional Elections, on Tuesday (24/11) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

The provision on candidate pair disqualification for candidate pair who permanently unable during campaign period until the voting day is detrimental on regional candidate pair’s constitutional rights and shall be declared contrary to the Constitution, East Lampung regional candidate Erwin Arifin delivers the statement at judicial review session on Act Number 8 Year 2015 of Regional Elections (UU Pilkada). Representing by Applicant’s Attorney Tanda Perdamaian Nasution, he as Applicant questions Article 54 (5) Act a quo.

Article 54 (4) Act a quo stated, “In terms of two or more candidate pairs permanently unable during campaign period until the voting day, regional election is still continued and the candidate pair who permanently unable cannot be replaced and both disqualified,” (“Dalam hal pasangan calon berhalangan tetap pada saat dimulainya Kampanye sampai hari pemungutan suara dan terdapat 2 (dua) pasangan calon atau lebih, tahapan pelaksanaan Pemilihan dilanjutkan dan pasangan calon yang berhalangan tetap tidak dapat diganti serta dinyatakan gugur.”)

Arifin, as East Lampung candidate, is disqualified by the East Lampung Election Commission due to the provision. As known, his pair Priyo Budi Utomo was passed away during campaign period. “The Applicant is declared disqualified today through the Regional Election Commission Decree, in this case is the East Lampung Election Commission Decree, due to Article 54 (5) Act a quo,”  said Nasution in the session of Case Number 140/PUU-XIII/2015 on Tuesday (24/11), at Plenary Room, the Constitutional Court Building.

According to the Applicant, the disqualification has violated his rights to elect and to be elected. Whereas, he assesses that the Article is discriminative because Article 54 (1) stated that in the period before campaign period, one of the candidate pairs who doesn’t permanently unable is given time to find replacement. “The candidate who disqualified during campaign period until the voting day is cannot be replaced, while the candidate who disqualified before campaign period is replaceable,” said him.  

Moreover, the Applicant assesses that the passing away of candidate pair is uncontrolled factor. He further says that the condition of permanent unable of a candidate that caused by passing away is different with the condition that caused by criminal offense. “In this case, the condition of permanent unable is caused by passing away. We can neither control nor predict the passing away of a person,” explained him.    

Therefore, the Applicant requests a provision that provides time for replacing passed-away pair. “Please provide reasonable time. Considering the period of campaign period until the voting day is the period of logistic printing and distribution, I think that the time (for replacing passed-away pair, ed) is technically able to be implemented with adjustment,” said Nasution.

In petition demands, the Applicant asks the Court to declare Article 54 (5) Act of Regional Elections contrary to the Constitution and has no legal binding if it isn’t interpreted “In terms of two or more candidate pairs permanently unable during campaign period until the voting day, regional election is still continued and the candidate pair who permanently unable can be replaced within three days after the passing away of the candidate pair. In terms of another candidate pair cannot find replacement within three days, he then declared disqualified,” (“Dalam hal pasangan calon berhalangan tetap pada saat dimulainya kampanye sampai hari pemungutan suara dan terdapat dua pasangan calon atau lebih. Tahapan pelaksanaan pemilihan dilanjutkan dan pasangan calon yang berhalangan tetap dapat diganti setelah diberikan waktu selama tiga hari setelah kematian pasangan calon. Dalam hal setelah dalam waktu tiga hari terlampaui namun tetap tidak memenuhi pengganti menemukan pengganti, maka pasangan calon yang berhalangan tetap dinyatakan gugur.”)

  

Justice Input

Responding the petition, Justice Panel led by Constitutional Justice Maria Farida Indrati asks the Applicant to strengthen petition arguments and revises petition demands (petitum).

“From your petition demands, it seems that you request the Constitutional Court to be positive legislator. You need to explain in detail on why the time provided for replacement is three days,” said Indrati.

Moreover, Constitutional Justice Palguna asks the Applicant to explain on the allotted time of three days. Palguna also says that the Applicant shall consider candidate eligibility time and data verification time. “Are three days enough or even too much? You shall explain the rationality of it,” added him.

At last, Constitutional Justice Wahiduddin Adams says that the Applicant needs to add arguments on similar problem which occurred in other regions. “Why the similar problem in other regions needs to be added in petition points? It is because the judicial review petition not considered as constitutional complaint. While the Constitutional Court reviews on Act norms,” said Adams. (Lulu Hanifah/Prasetyo Adi N)

 

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