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Said Salahudin and Yuliandri (left to right) after being sworn in as experts of the Petitioner in the judicial review hearing of Law No. 7/2017 on General Elections on Wednesday (29/11) in the Courtroom of Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) once again held a hearing to review Law No. 7/2017 on General Elections (Elections Law) for Case No. 53/PUU-XV/2017, 60/PUU-XV/2017, 62/PUU-XV/2017, 67/PUU-XV/2017, and 73/PUU-XV/2017 on Wednesday (29/11) in the Courtroom of the Constitutional Court. The agenda of this hearing was to listen to the statement by the Expert and Witness of Petitioner of case No. 62/PUU-XV/2017.

On that occasion, Director of the Public Synergy for Indonesian Democracy (Sigma) Said Salahudin saw the General Elections Commission’s (KPU) inability, as the organizing body of the election, in the implementation of the rules in the Elections Law. Said as the Petitioner\'s Expert stated this because he did not find [requirement for] verification in the a quo article, while in practice KPU verified the political parties of the 2014 election participants. Said noted that there are inconsistencies and obscurity caused by the ambiguity of the article being reviewed.

"I think the meaning of the a quo article is not clear so it is evident that what the Petitioner was concerned about the clarity of this article has raised doubts for election organizers in formulating the election technical rules, which leads to the potential of injustices between political parties participating in the 2019 elections," Said explained before the panel of justices led by Deputy Chief Justice Anwar Usman.

Meanwhile, Professor of Constitutional Law of Andalas University, Yuliandri, who also attended as Expert of the Petitioner delivered two things stated by the Petitioner, that Article 173 paragraph (3) of the Elections Law are subject to multiple interpretations and different treatment between political parties participating in elections. In response to this, Yuliandri observed the conceptual aspect of how a norm is formulated and delivered the interpretation of the [phrase] "different treatment" from several references. One of the references used by the Constitutional Court to assess the norm in question concerning equal treatment for all citizens the law and government.

Yuliandri believes that a norm formulated as a norm must refer to the principles of a good regulation, in which in principle norms formulated must not be formulated ambiguously in order not to cause uncertainty. As for the concept of "different treatment", Yuliandri refers to the Decision of the Constitutional Court No. 19/2010, that says that discrimination that is always associated with different treatment on a matter, does not necessarily mean that the different treatment causes legal discrimination.

"Thus, the different treatment in question contains a wider level of difference than discrimination because different treatment occurs not only on the basis of race. So, different treatment is different from discrimination," explained Yuliandri in the hearing led by Deputy Chief Justice Anwar Usman.

As a whole the phrase in the a quo article regulates the political parties that passed verification and are declared passing verification, Yuliandri sees that only the eligible political parties are then regulated by the a quo article. Thus, he sees that there are two possibilities resulting from the uncertainty in the a quo article: there are political parties that passed [verification] and there are those that will later be declared passing verification and will not participate in verification. For example, Yuliandri said that KPU explained all political parties participating in the 2014 General Elections and the new political parties participating in the 2019 General Elections must register. It\'s just that for political parties participating in the 2014 Elections factual verification is not required, in contrast to that experienced by new political parties. In this case, Yuliandri questions the provisions of article 173 paragraph (3) that has caused treatment gap between political parties participating in the upcoming General Elections. Therefore, Yuliandri sees two important things: first, the participation of political parties in the elections. In this case the elections can be interpreted as a state event of which organizing stage last two years and in this time there is a subject called election participants, namely political parties. "Thus, the membership status of each political party is only in every election, then the nature of membership is not permanent," said Yuliandri.

Secondly, Yuliandri continued, referring to the existence of political parties in the 1945 Constitution, political parties must go through stages of mechanism passed by political parties before becoming election participants; they must have a permit and be declared a legal entity. This applies continuously, unless the party is declared dissolved. Thus, based on the regulation of political parties that are considered to cause different treatment, Yuliandri responded with two approaches: the regulation of political parties as candidates participating in the elections and comparison of regulations and treatment to all election candidates, both political parties and individual candidates in legislative and presidential elections.

Implementation of Verification

On the same occasion, the Petitioner also presented Wibowo who had acted as member of the Crescent Star Party participating in the 2014 General Elections. In his statement, Wibowo—accompanied by Christophorus Taufik—explained what happened in 2012 when KPU conducted verification. The three things being verified are the existence of the office and all its elements; committee; and members of the political party. As for the central level, verification was done twice in which a commissioner visited to all offices of the political parties and checked the completeness of documents. "The office was checked and then the domicile. If they are the same, then [the party] qualifies, otherwise it would have been declared not eligible or TMS," said Wibowo, who is now member of the Perindo Central Council since 2016.

At the end of the trial, Deputy Chief Justice of the Constitutional Court Anwar stated that the hearing will continue on Tuesday, December 12, 2017 at 09.00 a.m. to hear the statement of two experts and two witnesses of Petitioner of Case No. 73/PUU-XV/2017. (Sri Pujianti/LA/Yuniar Widiastuti)

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