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A plenary hearing of the Pilkada Law to hear statements of the House and KPU, Monday (21/9) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held another 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 afternoon, September 21, 2020. The case No. 67/PUU-XVIII/2020 was filed by Mohammad Kilat Wartabone and Imran Ahmad, who challenge Article 7 paragraph (2) letter n of the Pilkada Law along the phrase “have never served as Governor/Regent/Mayor….”

The hearing had been scheduled to hear the statements of the House and the KPU. House Commission III member Habiburokhman explained that Article 7 paragraph (2) of the Pilkada Law is in Chapter III on the requirements of candidates for regional heads and their deputies. Article 7 paragraph (2) letter n was an amendment to Law No. 1 of 2015, which required candidates for regional heads and their deputies to not have served as a governor/regent/mayor twice in the same position.

“The key difference between Article 7 paragraph (2) letter n of Law No. 1 of 2015 and [that] of the Second Amendment to the Pilkada Law is the addition of the phrase ‘vice governor/vice regent/vice mayor.’ The original concept of Law No. 1 of 2015 is that deputy regional heads are not elected directly, only regional heads are. Therefore, as a commitment to the direct election, the provision on deputy regional heads were amended, including Article 7 paragraph (2) letter n of the Second Amendment to the Pilkada Law,” Habiburokhman said to the bench led by Chief Justice Anwar Usman.

He said that in the Second Amendment to the Pilkada Law, there are three similar norms. Article 7 paragraph (2) letter o stipulates that vice governor candidates shouldn’t have served as governors and vice regent/vice mayor candidates shouldn’t have served as regents/mayors in the same region. Article 7 paragraph (2) letter p stipulates that governors/vice governors, regents/vice regents, and mayors/vice mayors who run in another region should resign per their stipulation as election contestants. Article 7 paragraph (2) letter q stipulates that candidates shouldn’t serve as acting governors/regents/mayors.

“Those three norms limit one’s term of service in the government because power has the tendency of arbitrariness,” he stressed.

Habiburokhman further said that Article 66 paragraph (3) and paragraph (4) of the Second Amendment to the Regional Government Law stipulates that regional heads and their deputies are a unit in their service in the regional government. Therefore, Article 7 paragraph (2) letter n of the Second Amendment to the Pilkada Law reflects legislation harmony.

The House also responded to the Petitioners’ petitum that the two terms of service also be applied to acting officials, based on the condition in Bone Bolango Regency.

“Acting officials in this case, according to the Petitioners, are deputy regional heads. Because the regional head of Bone Bolango Regency were absent, the deputy served as the acting [regional head] as a replacement. There are several terms related to the acting regional head who carry out the routine duties of the regional head temporarily. The Indonesian administration has regulated the appointment mechanism of a temporary replacement head of public official who will carry out duties and obligations if the official or head of government agency is unable to carry out their duties,” Habiburokhman said.

The House stressed that the legal issue that should be addressed in the case of Bone Bolango Regency when a regional head is replaced for a long period of time is that the acting official should be appointed regional head and the vacancy of the deputy regional head should be filled as soon as possible pursuant to Law No. 23 of 2014.

“Actually, if the regional head has been absent for a long time, they should be dismissed,” Habiburokhman said.

General Elections Commission (KPU) member Hasyim Asy’ari explained the implementation of the election. "One of the implementations of local democracy is electing regional leaders, at the provincial and regency or city levels, through elections. Just like general elections, [regional] elections are a means of people’s sovereignty and an effort to achieve national goals and objectives as stated in the Preamble to the 1945 Constitution," he said. Governors/vice governors, regents/vice regents, and mayors/vice mayors are elected through direct, public, free, confidential, honest, and fair elections based on Pancasila and the 1945 Constitution.

"The KPU as one of the election organizers has the mandate to hold this local democracy event. The KPU is the organizer of national elections and is independent in conducting elections. This means that the KPU cannot and should not be intervened by any party in holding elections," he explained.

As a consequence, he added, the KPU must be transparent and accountable. Transparent means opening the widest possible access to information for the public regarding the implementation of elections and actively informing everything related to election.

The KPU believes Article 7 paragraph (2) letter n of the Pilkada Law is related to Article 162 paragraphs (1) and (2) of the Pilkada Law. Article 162 paragraph (1) reads, “Governor and vice governor as referred to in Article 161 paragraph (1) holds office for five years since the date of inauguration and thereafter can be re-elected in the same position for only one term of office.” Article 162 paragraph (2) reads, “Regent and vice regent as well as mayor and vice mayor as referred to in Article 161 paragraph (3) hold office for 5 years, since the date of inauguration and thereafter can be re-elected in the same position for only one term of office.”

Also read: 

One Term for Regional Heads Challenged

Regional Head Candidates Revise Petition on Pilkada Law

The petition was filed by Mohammad Kilat Wartabone and Imran Ahmad. Mohammad Kilat Wartabone is an independent regional head candidate for the 2020 simultaneous Pilkada in Bone Bolango Regency, Gorontalo Province while Imran Ahmad is a resident of Bone Bolango Regency, Gorontalo Province who has the rightto vote in and run for the 2020 simultaneous Pilkada.

They challenge Article 7 paragraph (2) letter n of the Pilkada Law that stipulates that candidates of governors, regents, and mayors and their deputies must “have never served as Governor/Regent/Mayor…,” which is interpreted to only apply to governors/regents/mayors. The norm only limits the term of office of regional heads but not to deputy regional heads acting as regional heads when the regional head position can be occupied by regional heads and acting regional heads.

The Petitioners feel disadvantaged because the Bone Bolango regent elected for 2010-2015 Abdul Haris Nadjmudin was temporarily dismissed for his involvement in a criminal case and replaced by vice regent Hamim Pou since September 18, 2010 to May 27, 2013. After 2 years and 3 months, Abdul Haris Nadjmudin passed away, allowing Hamim Pou to become acting regent since May 27, 2013 to September 17, 2015. He then was elected regent for February 17, 2016 to February 17, 2021. Pou, who is also a party chairman, was again nominated for regent in the 2020 simultaneous Pilkada for 2021-2026.

Writer: Nano Tresna Arfana
Editor: Nur R.
PR: Lambang T. S.
Photographer: Gani
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 9/23/2020 21:46 WIB

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

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