A plenary judicial review hearing of the Pilkada Law to hear the experts for the Petitioners and the Relevant Party, Tuesday (3/11) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—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) was held once again by the Constitutional Court (MK) on Tuesday afternoon, November 3, 2020. The hearing had been scheduled to hear the experts for the Petitioners and the Relevant Party.
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….”
Also read: One Term for Regional Heads Challenged
Muhtadi, an expert for the Petitioners, explained that the term of service of regional heads has been regulated in the Constitutional Court Decisions No. 8/PUU-VI/2008 and 22/PUU-VII/2009. However, he believed that the interpretation of the 2.5 year or more of the one term that hadn’t been implemented, must be reinterpreted pursuant to the elucidation to Article 38 paragraph (1) letter o of the Government Regulation (PP) No. 5 of 2005, so that it would conform to existing administrative practices.
He said that the regional government is regulated in Articles 8, 18, 18A, and 18B of Chapter VI of the 1945 Constitution. “One of the requirements that the case No. 67/PUU-XVIII/2020 challenges is Article 7 paragraph (2) letter n of Law No. 10 of 2016, never having served as governor/vice governor, regent/deputy regent, mayor/vice mayor for two terms in the same position for candidates of governor/vice governor, regent/deputy regent, mayor/vice mayor,” he explained.
Meanwhile, he added, Article 65 paragraph (4) of the Regional Administration Law expressly stated, “In the event that the regional head is serving a prison sentence or is otherwise temporarily indisposed, the deputy regional head exercises the duties and authorities of the regional head.” There is no difference between the obligations and prohibitions for a regional head and that of their deputy, including in terms of their dismissal, which is regulated in Article 78 of the Regional Administration Law.
“As there are no differences between the duties, authorities, and obligations for both positions, the one term as referred to in the Constitutional Court Decision No. 22/PUU-VII/2009 needs to be revised or reinterpreted by considering substantial justice in the implementation of those authorities, so if any deputy regional head candidate wants to run again but at the same time is [acting as interim regional head and completing their term], the remaining term is counted as one term since they exercise the duties, authorities, and obligations as regulated in the Regional Administration Law, not since they become interim regional head,” he said.
Also read: Regional Head Candidates Revise Petition on Pilkada Law
Meanwhile, the Relevant Party’s expert Djohermansyah Djohan said the requirements for regional heads and deputy regional heads formulated by the Government and the House in Article 7 paragraph (2) letter n of Law No. 10 of 2016 were sufficient. “However, why is it being challenged by a deputy regent who is supposed to understand the article? The provision, as far as [I] know, was not set arbitrarily, but had already been reviewed by the Government and had been decided with careful consideration in order to prevent abuse of power and ensure the succession of regional heads in a periodic, safe, and peaceful manner. Thus, there will be no tumult, no obstruction in the administration, and no harm to the community,” the expert on regional autonomy stressed.
Djohermansyah said the Pilkada Law had been amended twice and the article had never been questioned. However, he understood that in two decades, Indonesia’s regional autonomy has faced various problems. Weaknesses and shortcomings need to be corrected from time to time through changes in policies for decentralization and regional autonomy.
"Whether the formulation is incomplete, lacking in detail, unresponsive, or whether the implementation by actors in the field is problematic. Some of the things that stood out are the tug of war of authorities, debates on issues, corruption by regional heads, conflicts between regional heads and their deputies, and even the acting regional heads," he said.
Also read: House: Regional Heads Absent Too Long Must Be Dismissed
Another expert for the Relevant Party, administrative law expert Yohanes Usfunan, said that under normal conditions a regent can exercise their leadership in one five-year term, pursuant to Article 59 of Law No. 23 of 2014. However, issues would arise when the term was not completed due to a permanent obstacle.
“In the event that a regent passes away, the leadership is then taken over by the deputy regent, who is then appointed a regent until the end of the term. However, the duration of the deputy regent’s term when they are appointed an acting regent could potentially cause issues due to uncertainty in the limit of the term,” he said.
The uncertainty then compelled Petitioners I and II to file the petition. Hamim Pou served as acting regent on May 27, 2013 to September 17, 2015 following the minutes of oath, so in that period he had finished one term as argued by the Petitioners.
“Based on the petition by Petitioners I and II, using an analogy, the petition is the same as that regarding Article 58 letter o of Law No. 32 of 2004, which had been decided in the Constitutional Court Decision [No. 22/PUU-VII/2009],” he added.
Yohanes stressed that Article 7 paragraph (2) letter n should be interpreted not to violate the 1945 Constitution because based on said Constitutional Court decision, one term of service of acting regent in Indonesia is defined as one term that has been completed, or more than half of a term.
Also read: Govt Says Regional Heads Only Serve Two Terms at Most
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.
Also read: Expert: Regional Heads Shouldn’t Hold Office for Over 10 Years
Bone Bolango regent elect 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 11/09/2020 15:13 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.
Wednesday, November 04, 2020 | 08:10 WIB 195