Petitioner Sunggul Hamonangan Sirait listening to the ruling of the judicial review of Law No. 7 of 2017 on General Elections, Monday (23/9) in the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The judicial review of Law No. 7 of 2017 on General Elections petitioned by Sunggul Hamonangan Sirait was rejected by the Constitutional Court (MK). The petition No. 36/PUU-XVII/2019 on presidential election vote acquisition requirement was considered legally groundless.

The Petitioner requested the judicial review of 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.” 

The Petitioner said that, on the other hand, 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. 

In the legal considerations read out by Constitutional Justice I Dewa Gede Palguna, the Court considered the formulation contained in Article 416 paragraph (1) of the Election Law was exactly the same as that in Article 6A paragraph (3) of the 1945 Constitution, which was confirmed by the Petitioner. Therefore, he added, it would not make sense if the norm of the law that clearly formulates the provision as intended by the 1945 Constitution is said to be contrary to the 1945 Constitution, as argued by the Petitioner. 

"Besides, for a law, in casu Law 7/2017, it is not possible to add a norm as a derivative or further regulation of the 1945 Constitution if the addition of such a norm makes the norm contrary to the 1945 Constitution, both textually and contextually," Justice Palguna said in a hearing held on Monday (23/9/2019) in the Plenary Courtroom of the Constitutional Court. 

Therefore, Justice Palguna stated that based on considerations number 1 to number 5, the Petitioner\\'s argument stating Article 416 paragraph (1) of Law 7/2017 not providing legal certainty that it was against the idea of the rule of law was legally groundless. "Considering based on all the above legal considerations, the Court is of the opinion that the Petitioner\\'s argument is legally groundless for the whole," said Justice Palguna. (Lulu Anjarsari) (Lulu Anjarsari) 

Translated by: Yuniar Widiastuti