Chairman of the Indonesian Solidarity Party (PSI) Grace Natalie (center) as Principal Petitioner while taking self-pictures prior to the preliminary hearing of the judicial review of the Election Law on Wednesday (5/9) in the Constitutional Court Building. Photo by PR/Ganie.
The Constitutional Court (MK) held a preliminary hearing for the judicial review of Law No. 7 of 2017 on General Election (Election Law) on Tuesday (5/9) in the Plenary Hall of the Constitutional Court Building. The case was petitioned by the Petitioners in the trial for four cases, namely cases Number 59, 60, 61, and 62/PUU-XV/2017.
Petitioner Number 59, Political Communication Lecturer of Indonesia University (UI) Effendi Gazali argued that Article 222 of the Election Law violated his constitutional rights. Represented by Wakil Kamal, the Petitioner stated that the articles being reviewed could be classified as an attempt to manipulate the citizens’ right to vote, which is guaranteed by the 1945 Constitution, especially in relation to the recognition, guarantee, protection, and fair legal certainty of the outcome of the citizens’ right to vote.
"There is a serious problem of mixing up the results of the citizens’ right to vote, which was recklessly exploited. In the mix-up, it means that if only the Petitioner knew exactly who the members or factions of the House of Representatives who held on to the inquiry right to KPK until this petition was filed, the Petitioner would not vote for members of the House who the Petitioner voted for in the legislative election of 2014," said Kamal before the Plenary of Justices led by Constitutional Justice I Dewa Gede Palguna.
Meanwhile, the Indonesian Solidarity Party (PSI) or Petitioner Number 60, stated that 3 paragraphs of Article 173 in the Election Law are against the 1945 Constitution. Surya Tjandra, one of the attorneys, explained that Article 173 paragraph (1) contained discriminatory content for new political parties. Also, for Article 173 paragraph (2) letter e, the Petitioner highlighted female representation, which only existed at national level and did not reach provincial and district/city levels. Article 173 paragraph (3) jo. Article 173 paragraph (1) especially in the phrase \'...has been determined/...\' was considered potentially harmful to the Petitioner due to of double standards against the requirements of political parties to become election participants.
In addition, the Petitioner argued that the a quo provision resulted in assumption that some political parties were \'established\' and \'verified\' by the General Elections Commission (KPU) for participating in the 2019 General Elections. Thus, the a quo provision confused the \'established\' parties, which were the election participants\' of past 2014 elections, with \'verified\' ones, which are new political parties, for party candidates participating in the 2019 elections.
"Consequently, the verification results of KPU for legislative elections in 2014 cannot be used as a basis in freeing political parties that have passed verification in the previous election from the obligation to re-verify. The reason is that factual verification conducted by KPU in 2014 was for become election participant that year, while the 2017 Election Law is related to the 2019 General Election participants," stressed Surya in the hearing, which was also attended by Grace Natalie Lousia as PSI Chairman.
On the same occasion, Petitioners Number 61, Kautsar and Samsul Bahri, argued that Article 557 paragraph (1) letters a and b and paragraph (2), as well as Article 571 letter d violated their constitutional rights due to [the articles] potentially leading to political instability in Aceh, which would result in legal uncertainty in the 2019 elections in Aceh.
"The people of Aceh and the Petitioners have the right to live safely, peacefully, and prosperously come the 2019 elections, and if those articles are enforced , there will be a conflict of regulations in Aceh, which will create a situation that is not conducive," said Kamaruddin as the Petitioners’ attorney.
Still in relation to the petition for the review of the Election Law, the Indonesian Unity Party (Perindo) as Petitioner Number 62 argued that Article 173 paragraph (3) had the potential to violate its constitutional right due to the phrase \'political parties that have passed verification\' and \'not re-verified and is declared a Election Contestant Political Party.\' In this case, the a quo article was considered unclear. According to the Petitioner, the 2019 General Elections had not yet begun and no political parties would register as candidates yet, but the a quo article had determined which political parties passed the verification and had declared the political parties participating in the 2019 General Elections.
"The Perindo Party is a political party whose foundation is clear and has received approval from the Law and Human Rights Ministry. It is not clear whether this phrase in the a quo article applies to all political parties or to certain political parties only," said Ricky K. Margono as one of the Petitioner’s attorneys.
The Petitioner reasoned that there was preferential treatment to the political parties participating in the 2019 and 2014 general elections that new political parties not participating in the 2014 general elections did not receive. The classification, according to the Petitioner, caused gap or discrimination because Perindo was not a participant of the 2014 General Elections.
In addition, the a quo article was considered to result in new political parties not getting the same position in the law because their political requirements were different from those already registered in the 2014 General Elections. This, in [Margono’s] opinion, provided a way for the 2014 electoral political parties to be registered without the conditions imposed by KPU.
Judges’ Advice
In response to these four cases, Constitutional Justice I Gede Dewa Palguna emphasized the importance of legal standing as gateway in reviewing the constitutional damages suffered by the Petitioners.
"Legal standing covers the rights that are violated and in the background of the petition, explain as extensively as possible why the law is contrary to the 1945 Constitution," Palguna stressed to all Petitioners and their attorneys.
For case Number 59, Palguna requested that the Petitioner elaborate his legal standing by including references to the constitutional rights violated by the law being reviewed.
To Petitioners Number 60 and 62, which are legal entities PSI and Perindo, Palguna advised them to explain their legal standing based on their respective party\'s statutes and bylaws. Such would be necessary in order to be able to observe the constitutional rights of political parties as legal entities that are violated by the a quo article.
To Petitioner Number 61, Palguna questioned his position as an individual Indonesian citizen, in relation to the articles in question about KPU. According to him, in the legal standing it was not clear which constitutional rights of the individual that had been violated.
Constitutional Justice Aswanto further highlighted the petition No. 59. According to him, theoretical and constitutional arguments were not clear in the petition, so that it would need more elaboration. That is to convince the Court that the case filed is a constitutional matter. As for the petitions Number 60 and 62, Aswanto also advised the Petitioners to strengthen their arguments so as not to become ineffective.
"The constitutional rights need to be affirmed so that the arguments convince the Court that this is unfair," said Aswanto.
The Petitioners were given time until Monday, September 18, 2017 at 10:00 am to submit the revision to their petitions so that a follow-up trial can be held at a later time.
(Sri Pujianti/lul/Yuniar Widiastuti)
Wednesday, September 06, 2017 | 19:17 WIB 125