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Expert Iwan Satriawan delivering his expertise in defense of the Petitioners in the judicial review of the Pilkada Law on the Election of Governors, Regents, and Mayors, Monday (31/8) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—No provision obligates candidates to resign after listed as election contestants, said Iwan Satriawan, an expert for the Petitioners at 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 Monday, August 31, 2020.

At the plenary hearing led by Chief Justice Anwar Usman, Iwan said that an incumbent president is not required to resign while running for reelection, and even not required to take leave. “While, in fact, when a president doesn’t resign or at least take a leave of absence during election contestation, there is a high potential that they use their power to win [the election] illegally,” he said.

He believed that Article 7 paragraph (2) of the Pilkada Law violates the principles of equality and fairness in Article 28H paragraph (2) of the 1945 Constitution. He went on to compare the reelection of a president and a ministry’s contestation in the pilkada. The two aren’t required to resign after they’ve been declared election contestants.

“I support the Petitioners’ petition that argues that the provision of Article 7 paragraph (2) letter s of Law No. 10 of 2016 has treated DPR, DPD, and DPD members unfairly because the provision doesn’t apply to other positions such as the president and ministers who run for election and pilkada. Complying with constitutional moral values and consistent laws and regulations, the Court should revoke the provision of Article 7 paragraph (2) letter s of Law No. 10 of 2016 because it violates Article 28D paragraphs (1) and (2), Article 28H paragraph (2), Article 28I paragraph (2), and Article 28 paragraph (3),” Iwan said.

He concluded his statement by saying that other countries show different provisions on the election of political and non-political positions. This, he said, is influenced by each country’s politics. Lawmakers in each country must have a grand design of legislation that is integrated, fair, and provides legal certainty. When they don’t, the judiciary intervenes.

On behalf of Perludem as the Relevant Party, Fadli Ramadhanil said that the resignation requirement to run for DPR, DPD, and DPRD in the a quo article is a restriction of political rights that doesn’t violate the Constitution and is in accordance with Article 27 paragraph (1), Article 28 paragraph (3), Article 28H paragraph (2) of the 1945 Constitution.

He said that if the a quo article is revoked by the Court, as is petitioned in case No. 22/PUU-XVIII/2020, there will be unequal position before law and government, uneven opportunity, and unfair treatment because the provision of Article 7 paragraph (2) letter s of the Pilkada Law doesn’t require resignation only for DPR, DPD, and DPRD members, but also for other positions. Article 7 paragraph (2) letter t requires written resignation for military members, police officers, civil servants, and village heads as well as resignation from positions in state- and/or regional government-owned enterprises since they are declared election contestants.

Iwan added that the provision of Article 28I of the 1945 Constitution regulates the absolute right to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, to not be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, which are fundamental human rights that shall not be curtailed under any circumstance.

Also read:

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

Petitioners of Provision on Leave for MPs Revise Petition

Govt: MPs Must Resign to Run for Regional Election

House Stresses Distinction over Resignation Mechanism for Regional Election Contestants

The Petitioners argued that the provision of Article 7 paragraph (2) letter s of the Pilkada Law 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 9/2/2020 14:40 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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