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House Commission III member Arteria Dahlan giving a statement on behalf of the House in the judicial review of the Law on the Election of Governors, Regents, and Mayors, Wednesday (12/8) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—There must be different resignation mechanisms for regional head election (pilkada) contestants among members of the military (TNI), the police force, state civil apparatus (ASN), state-owned enterprises/SOEs (BUMD), and regional government-owned enterprises (BUMD) versus incumbents of the House of Representatives (DPR), the Regional Representatives Council (DPRD), and the Regional Legislative Council (DPD), said House Commission III member Arteria Dahlan on behalf of the House in the judicial review hearing of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of the Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) on Wednesday, August 12, 2020 in the Plenary Courtroom.

The distinction, he added, is necessary as the two are different offices. DPR, DPD, and DPRD incumbents and regional heads are public and political offices directly elected by the people. Therefore, the resignation mechanism for those offices must follow the special conditions following Law No. 17 of 2014 (MD3 Law).

In contrast, TNI, the police, ASN, and BUMN-BUMD employees or officials are professional offices. These offices offer public services, which necessitates neutrality, especially as they have official authorities. “When those holding these professional offices run for the Pilkada, they must resign from their current offices to maintain their neutrality. They cannot be equated with Pilkada contestants who are DPR, DPD, and DPRD incumbents,” he said regarding the petition No. 22/PUU-XVIII/2020.

Also read: Intending to Run for Office, House Members Challenge Provision on Resignation 

Restricting the Number of Pilkada Contestants

Arteria explained that the resignation requirement restricts the number of Pilkada contestants. The a quo provision, he said, ignores the role and function of political parties in educating the public.

He further said that if the Court insists on allowing DPR, DPD, and DPRD incumbents not to resign when running as regional heads or vice regional heads, it is consistent with its past decision on this issue. “Indeed, the execution of the first until the [latest] Pilkada has been inconsistent with the other Constitutional Court decisions,” he said before the justices led by Chief Justice Anwar Usman.

He also explained that the resignation requirement doesn’t apply to incumbents, who are only required to take unpaid leave during campaign period. “In addition, based on the ASN Law, regional heads are personnel supervisor officers (PPK) in the regions,” he added. He believes that there needs to be a change of this resignation requirement.

The Petitioners of this case are House of Representatives (DPR RI) member Anwar Hafid (Petitioner I) and West Sumatra Provincial Representatives Council (DPRD) member Arkadius Dt. Intan Baso (Petitioner II). They are challenging the provision of Article 7 paragraph (2) letter s of the Pilkada Law on resignation of members of the House of Representatives (DPR), the Regional Representatives Council (DPRD), and the Regional Legislative Council (DPD) since stipulation as contesting candidates in the regional head election.

Said article reads, “Candidates Governor and Candidates for Vice Governor, Candidates for Regent and Vice Regent, and Candidates for Mayor and Vice Mayor, as stipulated in paragraph (1) must meet the following requirements: s. stating in writing resignation as a member of the House of Representatives, a member of the Regional Representatives Council, and a member of the Regional Legislative Council since declared as contesting candidates for regional elections.”

The Petitioners argued that it contradicts the 1945 Constitution, in particular Article 7 paragraph (1), Article 28D paragraph (3), and Article 28H paragraph (2). They believe that members of the DPR, DPD, and DPRD as well as regional heads are conceptually an integrated group of positions, or "political positions," so that legislative members who wish to run for regional office should not need to resign from their positions. Although they do not resign, legislative members do not have a favorable position any more than other candidates or use their position to win the election. This is because, in principle, the legislative institutions do not have a bureaucratic network that can be drawn as part of the winning strategy.

To ensure that the nomination of legislative members in a regional office doesn’t hinder the performance of legislative institutions, the resignation requirement can be applied only to the position of "House complementary organs," without the need to relinquish the legislative office. Therefore, in their petitum, the Petitioners appealed to the Constitutional Court to declare Article 7 paragraph (2) letter f of the Pilkada Law unconstitutional and not legally binding. (*)

Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Fitri Yuliana
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 8/13/2020 16:19 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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