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Principal Petitioner Surya Efitrimen after the ruling hearing of the judicial review of the Regional Election Law, Wednesday (29/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—When Law No. 7 of 2017 on General Elections was passed, Law No. 15 of 2011 on Election Organizers was revoked and declared null and void. So, when the institutional legal basis for election organizers changed, all statutory regulations that refer to the regulation of the supervisory body for the implementation of regional head elections (as stipulated in the Regional Election Law) should also adjust to the changes.

This was said by Constitutional Justice Saldi Isra in the ruling hearing of the judicial review of Law No. 1 of 2015 on the Establishment of Government Regulation in Lieu of Law Number 1 of 2014 Regarding the Election of Governors, Regents, and Mayors into Law As Amended by Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Establishment of Government Regulation in Lieu of Law Number 1 of 2014 Regarding the Election of Governors, Regents, and Mayors into Law (Pilkada Law).

Petitioners Surya Efitrimen, Nursari, and Sulung Muna Rimbawan argued that Article 1 No. 17 along the phrase regency/city Panwas; Article 1 No. 17, Article 23 paragraphs (1) and (3) along the phrase "shall consist of 3 (three) persons each;" Article 24 paragraph (1); and all articles in the Election Law were unconstitutional.

Justice Saldi explained further that when the Pilkada Law, which regulates that the election supervisory institution is election supervisors as regulated in the Election Law, was not adjusted to the changes in the nomenclature of regency/city election supervisors, this would result in a non-uniformity of regulations in the implementation of the supervisory function, especially in the election of regional heads. This disparity, he added, could also have an impact on the two institutions that oversee elections at the regency/city level in the election of DPR members, DPD members, the president and vice president, and DPRD members in the regional head elections (Pilkada).

"While in fact, Bawaslu as regulated in Law 7/2017 is an institution that was given a permanent status up to the regency/city level, while the Pilkada Law actually regulates the formation, nomenclature, and different nature of the supervisory body in the election of regional heads," Justice Saldi said while reading out the legal considerations of Decision No. 48/PUU-XVII/2019 in a session held by the Constitutional Court (MK) on Wednesday (29/1/2020) in the Plenary Courtroom of the Constitutional Court. 

Changes Became Important

Justice Saldi explained that the institutional change in the regency/city Bawaslu based on the Election Law only impacted the position of the regency/city Bawaslu in overseeing the implementation of elections, but also in carrying out supervision of the election of regional heads. Therefore, adjustment to the changes referred to in the Pilkada Law became very important.

As long as there are no institutional adjustments for regency/city level election supervisors as regulated in the Pilkada Law with changes in Law 7/2017, there will be legal uncertainty of the regional head election supervisory institutions in the regency/city. In fact, Justice Saldi explained, as stated in the legal considerations of the Constitutional Court Decision No. 31/PUU-XVI/2018, in accordance with Article 22E paragraph (5) of the 1945 Constitution, the electoral organizer structure to elect DPR members, DPD members, the president and vice president, and DPRD members, and the execution of regional head elections should remain the same despite carrying out the mandates of two different laws.

"With aforementioned legal considerations, the argument of the Petitioners that the norms of the a quo articles in the Pilkada Law along the phrase \'regency/city Panwas\' not be interpreted as the phrase \'regency/city elections supervisory agency\'is contrary to the 1945 Constitution is legally grounded," said Justice Saldi. 

Formation of Supervisory Committee

Justice Saldi also mentioned that the regency/city Supervisory Committee (Panwas) is a committee formed by the Provincial Bawaslu and is one of the stages in the preparation of the regional head election. The Court is of the opinion that the regency/city Panwaslu institution becomes the regency/city Bawaslu whose recruitment process is carried out by a selection team formed by Bawaslu. The definition of regency/city Supervisory Committee in Article 1 number 17 of the Election Law, which still includes the phrase "formed by the Provincial Bawaslu," must also be adjusted. This needs to be done so as not to cause legal uncertainty. Moreover, Justice Saldi explained, the regency/city Supervisory Committee is already interpreted as regency/city Bawaslu. Thus, all the arrangements that determine the deadline for the formation of regency/city Bawaslu as part of the preparatory stages for the Pilkada and the regency/city Supervisory Committee is formed and determined by the Provincial Bawaslu, so the reason for legal uncertainty to occur must also be declared unconstitutional.

"The verdict adjudicated, in the subject of the petition grants the Petitioners\' petition for its entirety," said plenary chairman Chief Constitutional Justice Anwar Usman, along with the other eight constitutional justices.

In the previous hearing, the Petitioners stated that factually, the a quo articles can threaten the Petitioners\' position as election organizers. The Petitioners potentially may not be able to carry out the oversight function of the implementation of regional head election because the institutional design required by the a quo law is that the RI/Provincial Bawaslu forms an institution called the voters supervisory committee (panwaslih) which is new and institutionally different from the Regency/City Bawaslu, which is permanent based on the Election Law. (Sri Pujianti/NRA)

Translated by: Yuniar Widiastuti

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