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Wednesday, May 5, 2021 | 08:22 WIB

Virtual ruling hearing of Law No. 7 of 2017 on General Elections, Tuesday (4/5/2021) in the Plenary Courtroom. Photo by Humas MK/Ifa.

JAKARTA, Public Relations—The Constitutional Court (MK) granted part of the judicial review petition of Law No. 7 of 2017 on General Elections at a ruling hearing on Tuesday, May 4, 2021. The case was filed by chairman of the central executive board (DPP) of the Change Movement Party of Indonesia (Garuda) Ahmad Ridha Sabana and secretary general Abdullah Mansuri. They challenged Article 173 paragraph (1) of the Election Law. The Petitioner believed that the re-verification of political parties of a previous election was against the principle of legality and fair legal certainty. 

“[The Court] declares Article 173 paragraph (1) of Law No. 7 of 2017 on General Elections [unconstitutional] and not legally binding insofar as not interpreted as ‘A Political Party contesting that has passed verification of the 2019 Elections and have passed/fulfilled the Parliamentary Threshold requirement in the 2019 Elections shall undergo administrative verification but not a factual one; while a Political Party that only has representation at the provincial/regency/city DPRD and a Political Party that doesn’t have representation at the provincial/regency/city DPRD must be re-verified administratively and factually, following the requirements for new political parties,” said Chief Justice Anwar Usman reading out the verdict of Decision No. 55/PUU-XVIII/2020.

Also read: Garuda Party Challenges Reverification of Election Contesting Parties 

Reading out the Court’s legal considerations, Deputy Chief Justice Aswanto said the verification of political parties contesting in elections is an important and strategic part because political parties are a manifestation of the people’s aspirations. However, not all political parties may contest in elections. Only those that meet requirements can. Under Article 173 paragraph (2) of Law No. 7 of 2017, political parties can only contest in elections after passing strict requirements, because they must be able to reflect the people’s aspirations in a grand scale nationally, except those in Aceh Province.

“Therefore, political parties must have representation in all provinces; have representation in 75% of the regencies/cities in the provinces in question; have representation in 50% of the subdistricts in the regencies/cities in question; have permanent offices at the [capital], provinces, and regencies/cities until the last stage of the elections; and [fulfill] other requirements,” Justice Aswanto said at a ruling hearing in the plenary courtroom.

Also read: Garuda Party Affirms Legal Standing in Judicial Review of Election Law 

Unfair

Justice Aswanto added that political parties confirmed to contest in the 2019 elections can be categorized into three based on their votes and representation. First, those that met parliamentary threshold and had representation in the House (DPR). Second, those that met parliamentary threshold and had no representation in the House but had representation in the provincial/regency/city DPRD (Regional Legislative Council). Third, those that had no legislative representation.

Seeing the votes and representation of political parties in the elections, the Court believe that it shows unfairness because fairness means equal treatment of things that should be treated equally and different treatment of things that should be treated differently.

“Applying verification equally to all political parties contesting in elections, both those contesting in the previous elections and new [ones], is unfair. Therefore, political parties that meet the parliamentary threshold would still undergo the administrative verification but the not factual one,” Justice Aswanto explained.

Those that don’t meet the parliamentary threshold, have representation only in the provincial/regency/city DPRD, and have no representation must be re-verified administratively and factually, the same as new political parties. “Therefore, the Petitioner’s petition is legally grounded partially,” said Justice Aswanto before the litigants who attended the hearing virtually from their respective residences.

The constitutional justices didn’t come to a unanimous decision. Three of them, Constitutional Justices Saldi Isra, Suhartoyo, and Enny Nurbaningsih delivered dissenting opinions.

Also read: House: Party Verification Requires High Budget 

In the petition, the Petitioner stated that re-verification is against the principle of legality, fair legal certainty, and special treatment to receive opportunity and benefit from the previous verification. They had contested in the previous election and fulfilled the conditions required in Article 173 paragraph (2) of the Election Law after a long, costly process.

They argued that re-verification of contesting parties in every election is against administrative customs in Indonesia, is not regulated in the 1945 Constitution, and doesn’t fulfill the constitutional rights of the contesting parties. Based on the above argument, in its petitum the Garuda party requested that the Constitutional Court declare Article 173 paragraph (1) of the Election Law conditionally constitutional and not legally binding under the interpretation that ‘The parties that have passed verification for the 2019 Election are re-verified for the following elections.’ 

Writer        : Sri Pujianti.
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 5/5/2021 14:26 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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