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Ruling hearing of judicial review of the General Elections Law, Thursday (11/1) at the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) granted part of the material review on the status of the Aceh Province Elections Independent Commission as set forth in Article 557 paragraph (1) letters a, b, and paragraph (2) of Law No. 7/2017 on General Elections (Elections Law). Decisions No. 61, 66, and 75/PUU-XV/2017 were read by Chief Justice of the Constitutional Court, Arief Hidayat, in the presence of the other eight constitutional justices on Thursday (11/1).

"Grants the Petitioners\' Petition in part. Declares Article 557 paragraph (2) of Law No. 7/2017 on General Elections contradictory to the 1945 Constitution of the Unitary State of the Republic of Indonesia and having no binding legal force. Declares the Petitioners\' petition insofar as it relates to Article 571 letter d of Law No. 7/2017 regarding General Elections unacceptable. Reject the petition of the Petitioners for the remainder," said Arief.

In his petition, Petitioner No. 66/PUU-XV/2017 who reviewed the material of Article 557 and Article 571 letter (d) of the Elections Law argues that the two articles being reviewed have the potential to impair the constitutional rights of the Petitioners because they are contradictory to Article 18B of the 1945 Constitution. According to the Petitioner, prior to the formulation of the Elections Law, consultation and consideration of the Aceh Legislative Council (DPRA) was not asked for, when it is recognized and granted by Article 18B of the 1945 Constitution. The same is also petitioned by the Petitioners of Case No. 75/PU-XIV/2017 to review Article 567 paragraph (1) letters a and b, paragraph (2), and Article 571 letter d of the Elections Law, which is considered potentially impairing the constitutional rights of the Petitioners. According to the Petitioners, the articles had resulted in the non-enactment of the Law on the Government of Aceh (LoGA), in particular Article 57 and Article 60 paragraphs (1), (2), and (4). The articles are considered positioning Aceh as having a larger and independent role in governance, including in the implementation of elections.

In the consideration of the Court, Constitutional Justice I Dewa Gede Palguna said that in relation to the special status, including of Aceh, has been acknowledged, practiced, and implemented before the amendment to Article 18 of the 1945 Constitution. "The article is the state’s recognition of a special government unit in a region. In addition, the article states the special status or privilege are two alternatives so that the special status of a unit of government is at once its privilege," explained Palguna.

In relation to the Petitioner\'s claim of violation of his constitutional right as a member of the Aceh Legislative Council (DPRA) in selecting the Aceh Province Elections Independent Commission (KIP) members, Palguna explained historically, Aceh KIP and regency/municipal KIP were originally established as independent institutions with the task of organizing elections in Aceh directly. The Court considered that several aspects inherent in the historical context must be respected and given place, in this case the aspects related to the name and composition of membership, and the procedure of recruitment.

"This means that if matters concerning the name and composition of membership and recruitment procedures of Aceh KIP and regency/municipal KIP are to be amended, and in accordance with the hierarchical relations of national election organizers, the changes require engagement in the form of consultations and consideration of the DPRA," Palguna explained while reading out Decision No. 61/PUu-XV/2017 submitted by DPRA members.

However, continued Palguna, it should not be forgotten that Aceh KIP and Aceh Voters Supervisory Committee (Panwaslih) are institutions established to carry out the mandate of LoGA which is derived from the Helsinki Agreement between the Government of the Republic of Indonesia and the Free Aceh Movement (GAM). The agreement, which was then reformulated into the LoGA must be respected, especially by legislators.

Consultation with the DPRA

 Palguna added that the process of formulating laws related to the Aceh government should be pursued by consultation and consideration with the DPRA. Palguna stated that if it was not done, it would have an impact on the legal uncertainty for the Aceh government. However, until the day of the hearing, DPR could not provide the Court with evidence of consultation with DPRA. Thus, Article 557 paragraph (1) letters a and b of the Elections Law is unreasonable according to law, whereas Article 557 paragraph (2) of the Elections Law is reasonable according to law.

"Based on the legal considerations, the Court is of the opinion that the Petitioners\' petition in relation to Article 558 of the Elections Law is reasonable by law in part, while with regard to Article 571 letter d of the Elections Law, the Petitioners’ petition is obscure (obscuur libel)," Palguna said.

Obscure Petition

Meanwhile, in relation to Case 75/PUU-XV/2017 petitioned by Hendra Fauzi, Robby Syahputra, Ferry Munandar, Firmasnyah, and Chairul Muchlis, the Court considered Article 9 paragraph (1), Article 89 paragraph (3), and Article 562 of the Elections Law being reviewed contradictory to the 1945 Constitution based on arguments related to the existence of Aceh KIP, regency/municipal KIP, and Panwaslih, the Court through Constitutional Justice Suhartoyo reiterated that although Aceh KIP is a hierarchical part of KPU, its historical context must still be respected.

Through argumentation that was developed from and based on the special status of Aceh, in the petitum it seemed that the Petitioners actually want what they rejected in the posita of the Petitioners\' petitions, so it was not clear what the Petitioners really wanted. "Based on all considerations, the Court is of the opinion that the Petitioners\' petitions insofar as it relates to the unconstitutionality of Article 557 and Article 571 letter d of the Elections Law has lost its object, while with regard to the unconstitutionality of Article 9 paragraph (1), Article 89 paragraph (3), and Article 562 of the General Elections Law they are obscure (obscuur libel)," said Aswanto. (Sri Pujianti/LA/Yuniar Widiastuti)

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