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Petitioner Petrus Bala Pattayona (right) in the judicial review hearing of Article 458 paragraph (6) of Law No. 7 of 2017 on General Elections. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—The petition filed by Petitioner Petrus Bala Pattayona on the judicial review of Article 458 paragraph (6) of Law No. 7 of 2017 on General Elections was rejected by the Constitutional Court. The Decision No. 21/PUU-XVII/2019 was read out on Monday (15/4/2019) in the Plenary Courtroom of the Constitutional Court.

Advocate Petrus Bala Pattyona had argued that Article 458 paragraph (6) of the Election Law regulates that election organizers who are reported must come alone and cannot authorize others in the hearing of the Election Organizer Ethics Council (DKPP) and cannot authorize others. The Petitioner said that it had made him as attorney not to be able to perform his job, to have lost his right to compensation or work or income and fair treatment and the right to recognition, guarantee, protection, and fair legal certainty in exercising rights and obligations as a legal counsel. The Petitioner hoped that an interpretation by the Court will stop the loss and that advocates are no longer restricted by limitation in Article 458 paragraph (6) of the Election Law because of the phrase ‘cannot authorize others’ have harmed the him.

In the legal considerations read out by Constitutional Justice Saldi Isra, the Court is of the opinion that the phrase "and cannot authorize others" in Article 458 paragraph (6) of the Election Law is not actually intended for subjects outside the elections. This means, he added, the necessity to come alone in the examination of an allegation of violation of code of ethics is imposed on the election organizers who are reported.

At the same time, he said, the limitation that an election organizer allegedly violating code of ethics cannot authorize another person is also directed to election organizers, not to other parties. Because the limitation of the phrase in the norm is addressed to election organizers, not to any other party, it is in accordance with enforcement against violation of code of ethics, which bars representation by others. The prohibition in Article 458 paragraph (6) of the Election Law along the phrase "and cannot authorize others" is a logical consequence and characteristic of ethical violation resolution.

"Thus, […] the logic of giving power of attorney or authorizing another person, including an advocate, […] will give right and authority to the proxy, to act for and on behalf of the authorizer. Such logic is very possible because for certain reasons election organizers who have been reported of having violated or allegedly violating code of ethics can ask for representation to the recipient of power of attorney in the process of ethical violation resolution," Justice said in the ruling hearing presided over by Chief Justice Anwar Usman.

Public Court

Justice Saldi added that the principles used as a reference for resolving problems in case of alleged violations by election organizers, although limited to the ethical domain, must remain guided by the "procedural law" of quasi-public court. Moreover, the form of decision from DKPP should reported violations are proven is punitive. This confirms that the resolution of violation allegation is to use the procedural law mechanism in a quasi-public court.

"Based on the elaboration of the legal considerations, according to the Court, it is inappropriate if the respondent can give power of attorney to an attorney including in this case an advocate. That is because the legal relationship between the power of attorney and the one who receives it only occurs in private law, namely the legal relationship between individuals in the event of a conflict of interest or rights," he said.

Legal Counsel

In addition, because the Court affirmed that the resolution of violation allegation of election organizers in DKPP was quasi-public court, the Petitioners in the DKPP trial process could actually still act as a legal counsel, not an attorney.

A legal counsel, Justice Saldi added, is the party that can assist the respondent at the DKPP hearing, with the main duty of assisting, giving advice, and even assisting to provide defense. "Therefore, with said role of the Petitioner, the concern of the Petitioner of loss of fees (honorarium) is groundless," he said.

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