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Principal petitioners and attorneys in the preliminary material review hearing of Law No. 7 of 2017 on General Elections, Wednesday (10/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held the preliminary material review hearing of case No. 81/PUU-XVI/2018 regarding Law No. 7 of 2017 on General Elections on Wednesday (10/10/2018). The Petitioners are Muhammad Hafidz,  Abda Khair Mufti, and Sutiah with attorney Eep Ependi.

The Petitioners challenge the constitutionality of the phrase "ex-convict" in Article 182 letter g and Article 240 paragraph (1) letter g of the Election Law, which if not declared contrary to Article 28I paragraph (2) of the 1945 Constitution and not legally binding may show discrimination. The a quo norm treats all ex-convicts equally by providing opportunities to run for public office or political office, without considering the impact experienced by individuals, community groups, or the state at large for a number of years as consequences of the actions committed. 

"Regarding the legal standing of the Petitioners, Petitioners I and II are Indonesian citizens and taxpayers. Petitioner III is a poor person that has been receiving from the government social welfare assistance in the form of rice and non-cash food aid," Eep explained to the panel of justices led by Constitutional Justice I Dewa Gede Palguna. 

Eep said, the Petitioners were worried that the increasing arrests of public officials for corruption of state finances originating from public taxes would have an impact on the community itself, including the Petitioners. "Slower economic growth and investment as well as weak purchasing power. As a result of the increasingly high prices of basic necessities, not to mention the possibility that this will result in reduced subsidy assistance from the state that Petitioner III has been receiving in the form of rice and food," Eep said. 

The threat to the Petitioners’ rights to physical and spiritual prosperity provided by the state due to the widespread impact of corruption, said Eep, is not because of only weak law enforcement but also the absence of restrictions in legal norms that should be regulated by law to guarantee recognition and respect for the rights and freedoms of others in meeting fair demands in accordance with moral considerations, religious values, security, and public order in a democratic society. 

Eep explained that the Petitioners felt they had the legal standing to file a petition based on five reasons. First, the Petitioners are Indonesian citizens according to Article 51 of the Constitutional Court Law. Secondly, the Petitioners have constitutional rights in the 1945 Constitution: the right to freedom, to show an attitude in accordance with their conscience if not wanting to be represented by public or political officials who were convicted of corruption, as well as to obtain a prosperous life physically and mentally as regulated in Article 28E paragraph (2) and Article 28H paragraph (1) of the 1945 Constitution. 

"Third, the constitutional rights of the Petitioners would potentially be harmed if the candidates who were graft convicts were elected as representatives of the people, whose acts of corruption threaten the Petitioners\' right to physical and spiritual lives. Fourth, the potential constitutional impairment will occur if the law provides an opportunity for candidates who are graft ex-convicts to become public officials. Fifth, the Constitutional Court\'s decision means that the potential constitutional impairment of the Petitioners will not occur because the Petitioners will have options of candidates who are not former graft convicts," said Eep. 

Justices’ Advice 

Constitutional Justice I Dewa Gede Palguna advised the Petitioners to revise the part mentioning Constitutional Court decisions. It has been repeatedly stated in the Court that being taxpayers does not necessarily give individuals a legal standing. There must be impaired constitutional rights due to the enactment of the provisions petitioned for review. 

"Secondly, in the description of legal standing, I also did not see a logical and rational correlation between the constitutional rights that you use as the basis for obtaining legal standing with norms that have often been requested for review?" asked Justice Palguna. 

Meanwhile, Constitutional Justice Enny Nurbaningsih focused on Article 28E of the 1945 Constitution. She asked the Petitioners to elaborate on the argument of the petition. "You feel that the provision at least disturbs your freedom of religious belief, thoughts, attitudes, in accordance with [your] conscience. Then what is the causality between the two?" she asked. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti

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