Ruling hearing of the Judicial Review of the Election Law, Thursday (24/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.
The Constitutional Court (MK) rejected the entire petitions of the judicial review of Law No. 7/2017 on General Elections. The petition of case No. 48/PUU-XVI/2018 was filed by the Indonesian Solidarity Party (PSI) and that of case No. 53/PUU-XVI/2018 was filed by Muhammad Hafidz and other petitioners. “The verdict rejects the Petitioners’ petitions for its entirety,” said Chief Justice Anwar Usman in the presence of the eight other constitutional justices in the ruling hearing, Thursday (24/1).
Petitioner of case No. 48/PUU-XVI/2018 reviewed Article 1 number 35 of the Election Law. The a quo article states that election campaign is the activity by elections participants or other parties appointed by election participants to convince voters by offering the vision, mission, programs and/or self-images of election participants. The Petitioner highlighted the phrase "and/or self-image" in the article. According to the Petitioner, the formulation of the article contained obscurity, multiple interpretations, and is mixed up with the meaning of socialization and political education, so it must be declared contrary to the 1945 Constitution.
The Court was of the opinion that the election organizers cannot interpret the phrase flexibly. In one condition, the phrase is interpreted to mean a certain thing, while in another condition; it will be interpreted as another. This will be very difficult, because the purpose contained in the phrase "self-image" is very clear and includes all the actions of the election participants regarding their self-images.
"Even if in the implementation, the election organizers apply the norm differently to election participants, it is a violation of the professionalism of election organizers, not a matter of constitutionality of the norm of Article 1 point 35 of the Election Law. Based on the considerations above, the Petitioner\'s petition related to Article 1 number 35 of the Election Law insofar as the phrase \'and/or self-image\' is unreasonable according to law," said Constitutional Justice Arief Hidayat who read the opinion of the Court.
Then, the Court responded to the Petitioner\'s argument that Article 275 paragraph (2) and Article 276 paragraph (2) of the Election Law contradicted the 1945 Constitution. According to the Petitioner, the norm violated his rights and freedom to express opinions and political views in the form of vision, mission, and program through the media in a certain period of time. For example, the arrangement of the Campaign Props (APK), media advertisements, debates as a campaign facilitated by the General Elections Commission (KPU) which, according to the Petitioner, was a form of limitation of rights that contradicted the 1945 Constitution.
The Court considered that restrictions in elections, including restrictions on campaigns, could not be applied differently to election participants. All election participants, both new and old political parties, shall not be differentiated. In other words, they must be treated equally before the law. Indeed, when one is favored against another, on the grounds of it being a new or old political party, this can lead to discrimination.
According to the Court, the campaign restrictions, as stipulated in Article 275 paragraph (2) and Article 276 paragraph (2) of the Election Law, are not at all related to the different starting points among the new and old political parties participating in the election. Therefore, there is not enough reason for the Petitioner to question the existing campaign restrictions with the argument that there are different starting points among the new and old political parties.
Based on legal reasons as outlined above, campaign method restrictions in Article 275 paragraph (2) and campaign time restrictions in Article 276 paragraph (2) of the Election Law are reasonable and proportional restrictions.
"Based on the whole description of the legal considerations above, the Court is of the opinion that the Petitioner\'s petition regarding the unconstitutionality of Article 1 number 35, Article 275 paragraph (2), and Article 276 paragraph (2) of the Election Law is unreasonable for the whole," said Constitution Justice Saldi Isra who read the opinion of the Court.
Referring to Previous Petition
Meanwhile, for Case 53/PUU-XVI/2018 submitted by Muhammad Hafidz and other Petitioners, the Court referred to Decision of the Constitutional Court No. 48/PUU-XVI/2018 that ruled, "Rejects the Petitioner\'s petition in its entirety." In this decision, the Court conveyed the legal considerations that if the Petitioner\'s petition to declare the phrase "and/or self-image" contrary to the 1945 Constitution had been accepted, the weaknesses in the previous regulations on election could not have been overcome.
In addition, the revocation of the a quo phrase will also restore the election campaign process to the previous situation, where the election campaign cannot be monitored to the full. In turn, campaigns under Law No. 8/2012 and Law No. 42/2008 will potentially repeat. At the same time, efforts to place election campaigns in accordance with their material conditions to keep elections honest and fair will not be fulfilled.
"Even though the Petitioners explained their legal standing in submitting the a quo petition more because of the interests of the voters to be able to know the vision and mission of the election participants, including in this case the political parties participating in the election, due to Article 1 number 35 of the Election Law, the norm is to provide campaign restrictions, so claiming the norm of the article a quo unconstitutional," said Deputy Chief Justice Aswanto, who read out the opinion of the Court.
Thus, the petition of the Petitioners contradicts the Decision of the Constitutional Court Number 48/PUU-XVI/2018, which states that the change of the definition of campaign is a necessity to answer the lack of understanding of the campaign in some of the previous electoral laws. Because of the fundamental reasons for the formulation of Article 1 number 35 of the Election Law that has been considered in the Decision of the Constitutional Court Number 48/PUU-XVI/2018, the consideration is mutatis mutandis also applies to the arguments of the a quo petition. "Based on all the legal considerations above, the petition of the Petitioners is unreasonable according to law," said Justice Aswanto. (Nano Tresna Arfana/LA/Yuniar Widiastuti)
Thursday, January 24, 2019 | 15:37 WIB 139