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The Petitioners’ legal counsel Aan Eko Widiarto delivering the petition principal for the judicial review of the Election Law on Monday (18/9) in the Plenary Hall of the Constitutional Court Building. Photo by PR/Ifa.

The Constitutional Court held the preliminary hearing of judicial review of Article 7 Paragraph (2) letter a of Law Number 10 Year 2016 regarding the Second Amendment to Law Number 1 Year 2015 on Stipulation of Government Regulation in Lieu of Law Number 1 Year 2014 on the Election of Governor, Regent, and Mayor Into a Law (Regional Elections Law), Monday (18/9). The case No. 64/PUU-XV/2017 was filed by six DPD members of 2014-2019. The Petitioners questioned the mandatory requirement to resign from positions in the Regional Representatives Council (DPD) and the Regional Legislative Council (DPRD) should they run for regional elections.

The Petitioners are Akhmad Muqowam, Muhammad Mawardi, Abdul Rahman Lahabato, M. Syukur, Intsiawati Ayus, and Ahmad Kanedi. They requested a review of Article 7 paragraph (2) letter s of the Law on Regional Elections that states:

Governor and Vice Governor Candidates, Regent and Deputy Regent Candidates, as well as Mayor and Vice Mayor Candidates as stipulated in paragraph (1) must meet the following requirements:

s. A written statement of resignation as a member of the House of Representatives, a member of the Regional Representative Council, and a member of the Regional Legislative Council since declared as candidates of regional elections.

The Petitioners\' legal counsel Aan Eko Widiarto claimed that the article being reviewed was contrary to Article 1 paragraphs (2) and (3) of the 1945 Constitution for violating the principle of democratic state. Citing Bentham\'s, the Petitioner stated that the purpose of the law was to provide happiness, but the provisions of the law being reviewed were harmful.

"This article forces members of DPR, DPRD, DPD to resign from their positions when running for general elections," he said in the hearing led by Constitutional Court Justice Wahiduddin Adams.

Furthermore, the article is also deemed contrary to article 18 paragraph (3) of the 1945 Constitution because it relativized DPRD as a local government element. "In the article being reviewed, DPRD members must resign if they want to run in the general elections. However, Article 7 paragraph (2) letter p of the Regional Elections does not apply to governors, regents, mayors, and regents who runs in the general elections," he explained.

To him, DPRD as well as mayors and regents are part of the local government, but the applications of the policy to the two institutions are different. The Petitioners also considered that the article being reviewed was contradictory to Article 28D paragraph (1), Article 28D paragraph (3), and Article 28I paragraph (2) of the 1945 Constitution. According to him, the norm violates the principle of equality in the eye of the law. The norm being reviewed is discriminatory and does not provide the same opportunity.

Aan also stated that the case could not be considered nebis in idem, although there was the same decision related to a similar article, i.e. Decision No. 17/PUU-VI/2008, No. 45/PUU-VIII/2010, No. 12/PUU-XI/2013, No. 57/PUU-XI/2013, No. 41/PUU-XII/2014, and No. 83/PUU-XIII/2015.

"The case reviews a different law. The legal issue is also different. The other case compared civil servants and employees of state-owned enterprises, while this case compares [civil servants] and heads of regions," he said.

Justices’ Advice

In response to the petition, Constitutional Justice I Dewa Gede Palguna stated that, overall, the petition was not problematic. Nevertheless, he recommended that points two and three in the petitum be combined to make it concise. Justice Palguna also asked about two of the Petitioners’ attorneys who had not signed a power of attorney whether they were still registered or not. "These two are still registered as attorneys. We will submit the revision," Aan said.

Similarly, Justice Wahiduddin said the outline of the petition was correct. "I think the Petitioners have prepared rebuttals for the crucial points, for example, on the issue of nebis in idem there has been a legal rebuttal," he explained.

Before closing the session, the panel of justices requested that the petition revision be submitted within 14 days, or no later than October 2, 2017 at 11 am.

(ARS/lul/Yuniar Widiastuti)

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