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Principal Petitioners Dorel Almir, Abda Khair Mufti, and Muhammad Hafidz after preliminary hearing of the judicial review on the General Elections Law, Thursday (6/9) in the Plenary Courtroom of the Constitutional Court. Photos by Humas MK/Ganie.

Law No. 7/2017 on General Elections (Election Law) was reviewed again materially at the Constitutional Court on Thursday (6/9). The case registered as No. 71/PUU-XVI/2018 was filed by Dorel Almir, Abda Khair Mufti, and Muhammad Hafidz. 

The Petitioners claimed that the provision of campaign funds as stipulated in Article 326 of the Election Law has the potential to impair their constitutional rights. Article 326 of the Election Law reads, "Campaign funds originating from other parties as referred to in Article 325 paragraph (2) letter c are in the form of donations, which are legally valid and are non-binding and may come from individuals, groups, companies, and/or non-government business entities." 

The provision, according to the Petitioners, is detrimental because it does not regulate the limitation of campaign funding for the presidential and vice presidential election originating from one or a pair of candidates for the president and vice president or from political parties. As election participants, of presidential and vice presidential candidate pairs or political parties are given the right to receive campaign funds that are not binding on individuals and may not exceed 2.5 billion rupiah or are from non-governmental groups, companies, and/or business entities that cannot exceed 25 billion rupiah. However, the Election Law does not regulate the limits of the granting of campaign funds for the election of the president and vice president concerned or for political parties. 

"The absence of this regulation has the potential to allow the emergence of donors of unknown origins giving funds directly to one of the presidential and vice presidential candidates or for political parties. Therefore, this might trigger unhealthy elections," Dorel said as one of the Petitioners before a hearing led by Constitutional Justice Wahiduddin Adams in the presence of Constitutional Justices Saldi Isra and Enny Nurbaningsih.

Therefore, the Petitioners requested that the Constitutional Justices declare Article 326 of the Election Law to not have binding legal force insofar as the campaign funds for the election of president and vice president originating from individuals including president and vice president candidates must not exceed Rp85,000,000,000.00 (eighty five billion rupiahs), as well as those from groups including political parties and/or joint political parties may not exceed Rp850,000,000,000.00 (eight hundred fifty billion rupiahs), companies and/or non-government business entities. If the a quo article is declared conditionally constitutional, Darel added, as citizens who are also obliged to safeguard the implementation of fair elections, the Petitioners hoped that the elected government of the president and vice president will not be concerned by the interests of donors who can harm the public interest. 

Constitutional Impairment

Responding to the petition, Constitutional Justice Enny Nurbaningsih responded by giving suggestions to the Petitioner for improvements, especially relating to the constitutional impairment of the Petitioners caused by the enactment of the a quo norm. According to Justice Enny, the article that the Petitioners want to review is related to the next articles, articles 325 and 327 of the Election Law. "For this reason, the Petitioners need to sharpen the point on constitutional impairment so that it can be observed against the norm reviewed. That needs to be improved," she said. 

In line with this, Constitutional Justice Wahiduddin Adams also asked the Petitioners who wished to contribute in future elections to emphasize potential constitutional impairment by sharpening and expanding it so that there would be clarification between the rights of the Petitioners, legal certainty, and the provision on campaign funds being reviewed. 

Constitutional Justice Saldi Isra recommended that the Petitioners find academic arguments on the relationship between direct, public, free, confidential, honest, and fair (luber jurdil) elections with unlimited campaign funds. "If there are unrestrictive norms or studies on campaign funding sources that can threaten the elections, please explain the impacts," he suggested. 

In addition, Justice Saldi also requested that the Petitioners explain the consequences if the Constitutional Court expanded or narrowed the interpretation of the a quo article, especially regarding campaign financial contributions. "Will the decision of the Constitutional Court lead to a legal vacuum? So, the Petitioners may help the Court sharpen the analysis in the revised petition," he said. 

At the end of the hearing, Justice Wahiduddin requested that the Petitioners submit a revision to the petition no later than Wednesday, September 19, 2018 at 10:00 a.m. so that the Registrar’s Office of the Constitutional Court can schedule the next hearing. (Sri Pujianti/LA/Yuniar Widiastuti)

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