Petitioner’s attorney Meivri. D. Nirahua in the judicial review of Law Number 7 of 2017 on General Elections Monday (15/4 in the Courtroom of the Constitutional Court). Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) rejected the entire judicial review petition of Law Number 7 of 2017 on General Elections Monday (20/5/2019) in the Plenary Courtroom of the Constitutional Court. Chairman of Aru Islands District General Elections Commission (KPU) Victor F. Sjair (Petitioner I) and Chairman of West Southeast Maluku KPU Johanna Joice Julita Lololuan (Petitioner II) argued that Article 10 paragraph (1) letter b and Article 567 paragraph (1) of the Election Law were unconstitutional.

On the Petition No. 26/PUU-XVII/2019 the Court, in its legal considerations read out by Constitutional Justice Saldi Isra, systematically mentions the position of Article 567 paragraph (1) of the Election Law as a "Transitional Provision." Referring to No. 127 in the Appendix of Law 12/2011 that Transitional Provisions contain adjustments to the regulation of existing legal actions or legal relations of old and new laws and regulations.

"Thus, it is clear that the norm in Article 567 paragraph (1) of the Election Law is intended as a transition and after members of the KPU, provincial KPU, district/municipal KPU are [appointed] based on new regulations, the provision of Article 10 paragraph (9) of the Election Law will apply," Justice Saldi said before the court chaired by Chief Justice Anwar Usman, accompanied by seven other constitutional justices.

In the context of lawmaking, Justice Saldi added, it is undeniable that Article 567 paragraph (1) of the Election Law was formed to create fair legal certainty for election administrators at the provincial and district/municipal levels. If lawmakers did not make the transitional regulation, the terms of office of election organizers, including provincial and district/municipal KPU might have ended when new regulations were implemented, even though based on an old regulation their terms of office have not yet ended. In that context, all election organizers, including the Petitioners, have been given fair legal certainty by Article 567 paragraph (1) of the Election Law.

"Accordingly, a contrario, if the Petitioners\' argument was followed, it would create legal uncertainty over the terms of office of provincial and district/municipal KPU members whose remaining terms of office were filled in according to Law 15/2011. Concretely, if it is associated with the Petitioners, if the provision of Article 567 paragraph (1) of the Election Law did not exist, it would certainly cause legal uncertainty that is unfair to the Petitioners themselves," Justice Saldi explained.

Design of the Selection Process

With regard to the Petitioners’ concerns regarding the replacement of provincial/district/municipal KPU members being near the voting schedule, they are not caused by the provision of Article 567 paragraph (1) of the Election Law. Because, in fact, changes in the number of provincial and district/municipal KPU members nearing the voting can be overcome by designing of KPU members appointment in accordance with the election stages.

This means, Justice Saldi explained, in order to keep the change feared by the Petitioners from reoccurring, the KPU can design a selection process that considers the election stages in question. "Based on these considerations, the Petitioners’ argument for the unconstitutionality of Article 10 paragraph (1) letter b, Article 567 paragraph (1), and Appendix I on the Table of Members of the Provincial Election Commission in the Election Law are legally groundless," he said. (Sri Pujianti/LA/Yuniar Widiastuti)