Petitioner Dorel Amir (right) in the ruling hearing of the judicial review of Law Number 7 of 2017 on General Elections on Monday (20/5) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The judicial review petition of Law Number 7 of 2017 on General Elections filed by Golkar Party member Dorel Amir was rejected by the Constitutional Court. “The ruling heard, rejects the Petitioners’ petition,” said plenary chairman Anwar Usman in the presence of the other constitutional justices in the ruling hearing of case No. 67/PUU-XVI/2018, Monday (20/5/2019).

Constitutional Justice Saldi Isra, who read out the opinion of the Court, stated that political parties are organs designed to be institutions that have sovereignty in the hands of their members, so that they have their own freedom in determining recruitment requirements and mechanisms in their statute/bylaws. At the same time, political parties also have the freedom to recruit members as long as the recruitment is carried out according to the methods and principles specified in the Law on Political Parties, and is not discriminatory for Indonesian citizens.

"In this regard, when political parties propose their members as legislative candidates without providing a minimum deadline to become political party members, the absence of said limitation is not included in the Election Law, can such a condition be considered a discriminatory legal policy that can be considered violating the constitutional rights of the Petitioner to be free from discriminatory treatment pursuant to Article 28I paragraph (2) of the 1945 Constitution?" Justice Saldi said.

This, he added, has been stated by the Court in previous decisions, that the 1945 Constitution does not justify the existence of discriminatory legal policies. In Decision Number 011-017/PUU-I/2003, the Court states that what is meant by discrimination is different treatment of citizens on the basis of religion, ethnicity, race, group, social status group, economic status, language, and political belief. These considerations are in line with the substantive meaning contained in Article 27 paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution.

The Court is of the opinion that the definition of discrimination as intended and desired by the 1945 Constitution is used to assess political party membership requirements do not specify a deadline. As requested by the Petitioner in the a quo case, the Court found no discrimination at all. The provision of Article 240 paragraph (1) letter n of the Election Law only contains the requirement "to become members of political parties participating in the election." These requirements apply generally to all citizens who will run or be nominated as candidates for DPR (House of Representatives) and DPRD (Regional Legislative Council) members. Thus, the requirements do not intend to discriminate citizens on the basis of ethnicity, religion, race, class, group, or political belief. Therefore, the a quo norm cannot be declared to have discriminated the Petitioner that it must be declared contrary to Article 28I paragraph (2) of the 1945 Constitution, which states that everyone has the right to be free from discriminatory treatment on any basis.

Furthermore, the Court also understands the Petitioners’ wish regarding the need for a certain deadline to be a political party member before a citizen is nominated as a prospective legislative member. The aim is to maintain the quality of the regeneration of political parties and to support the implementation of higher quality elections. The minimum deadline to become a political party member is expected to encourage the improvement of the political party recruitment and regeneration. However, Justice Saldi added, it is up to lawmakers to assess and decide it, and it is not about the constitutionality of political party membership requirements for DPR and DPRD candidates as stipulated in Article 240 paragraph (1) letter n of the Election Law.

"Based on the above legal considerations, the Court is of the opinion that the Petitioners\' argument on the unconstitutionality  of Article 240 paragraph (1) letter n of the Election Law insofar as it is not interpreted at least 1 (one) year being a political party member […] is legally groundless," Justice Saldi said.