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The Petitioner\'s attorney Donal Faris conveying the subjects of the petition of the judicial review of the Regional Election Law, Tuesday (8/10) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

JAKARTA, Public Relations of the Constitutional Court—Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors (Regional Election Law) was materially reviewed once again in the Constitutional Court (MK). The preliminary hearing of case No. 56/PUU-XVII/2019 took place on Tuesday (8/10/2019) in the Plenary Courtroom of the Constitutional Court. The petition was filed by the Indonesia Corruption Watch (ICW) and the Association for Elections and Democracy (Perludem), who argued that Article 7 paragraph (2) letter g "Never became a convict based on a court decision that has obtained permanent legal force or for a former convict has openly and honestly informed the public that the concerned is a former convict" was not in line with Article 28I of the 1945 Constitution.

The Petitioners\' attorney Donal Faris in the hearing said the provision allowing former convicts of corruption cases running for the regional head as stated in the Election Law only by announcing it to the public as stipulated in the law has hampered efforts in eradicating corruption. In addition, the article also impedes the Petitioners\' efforts to encourage community empowerment so they would be able to participate in policy making and oversight in order to realize a political, legal, economic, and bureaucratic system free from corruption based on social and gender justice.

According to the Petitioners, the provision has given opportunities to former convicts especially of corruption to become or run as candidate for regional heads without any waiting period. Although political rights are guaranteed by the 1945 Constitution, when carrying out the constitutional obligations to protect, respect, and fulfill human rights, the state may be forced to make certain restrictions to political rights in certain situations. The Constitution also regulates rights that cannot be reduced under any circumstances because they are absolute. 

Another attorney Fadli Ramadhanil added that the absence of regulation on waiting period for former convicts of corruption in running for the regional election led to them contesting in the election. Former convicts who were selected as heads of region then have a great opportunity to repeat their crime. Donal revealed that Kudus Regent Muhammad Tamzil was suspected in a bribery case in exchange for career promotion in the Kudus Regency administration after having been convicted of budget graft in said regency.

"Without a waiting period of 5 years for former convicts to return to being a candidate regional head and [without] a requirement of not being convicted of crimes have harm democracy, as had been described by the Court through a previous ruling, where [the public election of] an official through the election cannot be left entirely to voters. There must be state instruments that provide protection so that the elected public officials have quality and integrity," said Fadli. 

The Petitioners considered that based on the consideration of Decision Number 4/PUU-VII/2009, the Court has stated that in criminal law in Indonesia there is no stigmatization in sentencing. Therefore, there must be a clear time limit to ensure legal certainty, so that people who are sent to correctional facilities have their rights restored. 

In the petitum, the Petitioner asked the Court to declare the a quo article not legally binding insofar as it was not interpreted as "not given an additional criminal sentence of revocation of the right to be elected by a court decision that has permanent legal powers, for a former convict having passed a period of 5 (five) years after the former convict has finished serving a prison sentence based on a court decision that has permanent legal force, is honest or open about their true background as a former convict, and not as a perpetrator of a recurring crime." 

Legal Standing 

In response to the petition, Justice Saldi Isra said that the Petitioners should revise their legal standing and correct the errors in the petition. Similarly, Constitutional Justice Suhartoyo asked the Petitioners to provide references to the Court in relation to their legal standing, by observing the Court\'s previous decisions.

The Petitioners were given 14 working days to revise the petition following the justices\' recommendations. The next hearing will examine the revised petition. (Utami/LA)

Translated by: Yuniar Widiastuti

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