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Preliminary examination hearing of the judicial review of the Election Law, Tuesday (7/5) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—The preliminary examination hearing of the judicial review of Law No. 7 of 2017 on General Elections was held by the Constitutional Court on Tuesday (7/5/2019). The case No. 36/PUU-XVII/2019 was petitioned by advocate Sunggul Hamonangan Sirait, who was listed the 2019 General Elections final voters list (DPT).

The Petition challenges Article 416 paragraph (1) of the Election Law that reads, “The elected Candidate Pair is the Candidate Pair that receives more than 50% (fifty percent) of the votes in the Presidential and Vice President Elections with at least 20% (twenty percent) of votes in each province spread over more than 1/2 (half) the number of provinces in Indonesia.” 

On the other hand, the Petitioner said, Article 6A number 3 of the 1945 Constitution reads, “The presidential and vice-presidential candidate pair who receives more than 50% of the total votes in the elections with at least 20% of the votes in each province spread over more than 1/2 (half) the number of provinces in Indonesia is appointed President and Vice President.”

Meanwhile, Article 6A number 4 of the 1945 Constitution reads, "In the event that no presidential and vice-presidential candidate pair is elected, two candidate pairs who receive the first and second most votes in the general elections are elected directly by the people and the pair who receives the most votes from the people is inaugurated as president and vice president." 

Sumpul argued that the original intent of Article 6A paragraphs (3) and (4) of the 1945 Constitution of the drafters of the 1945 Constitution—the Ad-Hoc Committee of the Decree of the People s Consultative Assembly I (TAP MPR I)—during the discussion of presidential and vice-presidential election in the process of amending the Constitution, discussed a minimum of 50% + 1 votes in determining the winning candidate pair. However, as reflected in the minutes, drafters of the amendments to the 1945 Constitution also considered uneven population distribution between Java and other islands, including population composition, geographical location, and ethnicity. 

"The provision of the norm contained in Article 6A paragraphs (3) and (4) of the 1945 Constitution is adapted directly and without change by the drafters in Article 416 paragraphs (1) and (2) of Law No. 7 of 2017," explained Sunggul to panel chairman, Justice I Dewa Gede Palguna. 

Sunggul added, in relation to the legal construction of Article 6A paragraphs (3) and (4) of the 1945 Constitution, Article 6A paragraph (3) of the 1945 Constitution insofar as it relates to the number of candidate pairs must be linked to the provision of Article 6A paragraph (4) of the 1945 Constitution. This means that the number of candidate pairs referred to in Article 6A paragraph (3) related to the provision of Article 6A paragraph (4) of the 1945 Constitution is more than 2 (two) candidates pairs. Likewise, the legal construction in Article 416 paragraph (1) of the Election Law must be interpreted insofar as it is related to the number of candidate pairs, it must relate to the construction of Article 416 paragraph (2) of the Election Law: the presidential and vice presidential election participants must be more than 2 (two) candidate pairs.

Constitutional Justice I Dewa Gede Palguna observed the legal standing. “You have not described the legal standing clearly. You have quoted the requirements to the loss of constitutional right pursuant to the Constitutional Court decision, but [you have not] elaborated. That is why I asked you to read [it]. What constitutional right do you claim to have been violated by the enactment of this Law? There has not been any explanation on this,” he said.

“In fact, the Constitutional Court decision is clear in stipulating that the right shall be described specifically; that there is causality between the loss that you claimed and the enactment of the Law petitioned for review, and so on. If [the petition] is granted, the loss will not occur. However, you have not explained this. You only quoted the decision, but the next elaboration does not show the substance of the requirement specified in the Constitutional Court decision. Please revise it,” Justice Palguna advised.

Constitutional Justice Arief Hidayat observed the posita. “In the posita, you state that Article 416 number 1 of the Election Law has caused uncertain meaning, uncertain interpretation, and vague implementation targets. What [do you mean]? Try to explain page 7. Which part is vague?” he asked. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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