Titi Anggraini of Perludem and Pattimura University lecturer Sherlock Halmes Lekipiouw giving statements for the Petitioners in the judicial review of the Election Law, Tuesday (10/7) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

By forming the provision that stipulates the number of the regency/city General Election Commission (KPU) member at 3 or 5 people, lawmakers have ignored and/or obscured the recognition of an administration that have archipelagic characteristics as referred to in Article 18B paragraphs (1) and (2) of the 1945 Constitution, said Sherlock Halmes Lekipiouw as an expert presented by the Petitioners in the judicial review of Law Number 7 of 2017 on General Elections (Election Law) on Tuesday noon (10/7/2018).

"The a quo provision also [results in] a conflict of rule of law, which results in the unclear boundaries of a rule of law and guarantee of legal certainty. The rule of law in this case is interpreted as the contents of the rule of law. The contents of a rule are all the characteristics that embody that rule, while the scope of the rule according to Bruggink is the area of application of the relevant rule. There are two propositions put forward by Bruggink: the contents of a rule determine the area of application and the contents of the rule are inversely proportional to the areas of application," Sherlock added in response to petition No. 38/PUU-XVI/2018.

Sherlock further explained that the rule of law and inconsistent application will affect the guarantee of legal certainty, which is needed by the KPU in supporting the independence of the execution of the elections. Therefore, the formation of the basis of the petition should not only limited to the formal reasons. "But must be placed in the substance of the Constitution, which is concerned with the essence of substantive justice, namely the protection of the constitutional rights. Thus, such a provision is clearly unconstitutional," said Sherlock.

Illogical

Election observer Titi Anggraini gave her opinion on the argument of petition No. 31/PUU-XVI/2018 regarding the reduction of PPK (sub-district election committee) members. According to her, lawmakers have ignored the huge burden that would be borne by PPK due to the recapitulation that goes directly to the ­district. She said lawmakers were illogical and did not calculate potential problems that could arise related to threats to fair elections as mandated by the Constitution. In the 2009 General Elections to elect only four positions except for DKI Jakarta, PPK members at the sub-district level consisted of five people.

"In the regional head election, whose task and technical recapitulation is far from simple compared to the recapitulation process of the legislative election, the number of PPK regulated by the Regional Election Law is five people. How is it possible that for the 2019 Elections, of a legislative election with more complex recapitulation instruments and the recapitulation of presidential and vice presidential elections, the number of PPK is only three people?" Titi said.

The Petitioners of case No. 31/PUU-XVI/2018, Erik Fitriadi and partners, argued that the declaration of 3 (three) or 5 (five) members of the regency/municipality General Elections Commission (KPU) and 3 (three) members of District Election Committee (PPK) did not consider Indonesia\'s geographical diversity, especially the Central and Eastern parts of Indonesia, which comprise of thousands of islands and mountains with varying levels of access; some electoral regions being weather-dependent, some cannot be reached on land, and some can only be reached on foot. According to the Petitioners, restrictions and prohibitions on candidate members of the central, provincial, or regency/municipality General Elections Commission (KPU) elect to resign from the management of legal entity and non-legal entity mass organizations are also harmful and contrary to the principles of human rights.

The Petitioner of case No. 38/PUU-XVI/2018 Victor F. Sjair, member of the Aru Islands District Election Commission (KPU) for the 2014-2019 period, feels aggrieved by the enactment of Article 10 paragraph (1) letter c, Article 10 paragraph (2), and Article 10 paragraph (3), and Appendix I of the Elections Law. The articles are deemed limiting the constitutional rights of the Petitioner to become Aru Islands District KPU Member for the 2019-2024 period. According to the Petitioner, such provisions do not provide legal certainty for the Petitioner because even though the Petitioner continues running as Aru Islands District KPU member for the 2019-2024 period, it does not guarantee that the Petitioner can be re-elected as Aru Islands District KPU member because the elected Aru Islands District KPU members are only 3 (three) people instead of 5 (five) people like other regions in Indonesia according to Appendix I of the Elections Law. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti