Constitutional Justice Saldi Isra presiding over the judicial review hearing of Law No. 7 of 207 on General Elections, Wednesday (9/22/2021) in the panel courtroom. Photo by Humas MK/Panji.

---

Wednesday, September 22, 2021 | 21:18 WIB

JAKARTA, Public Relations—The preliminary hearing of the judicial review of Law No. 7 of 2017 on General Elections was held by the Constitutional Court (MK) on Wednesday afternoon, September 22, 2021. The petition No. 48/PUU-XIX/2021 was filed by Yusril Ihza Mahendra (chairman) and Afriansyah Noor (secretary-general) on behalf of the Crescent Star Party (PBB), Muchdi Purwopranjono (chairman) and A.P. Badaruddin (secretary-general) on behalf of the Berkarya Party, Hary Tanoesoedibjo (chairman) and Ahmad Rofiq (secretary-general) on behalf of the United Indonesia Party (Perindo), Grace Natalie Louisa (chairman) and Raja Juli Antoni (secretary-general) on behalf of the Indonesian Solidarity Party (PSI) (Petitioners I-IV). They challenge Article 173 paragraph (1) of the Election Law, which reads, “A Political Party Contesting in an Election is a political party established as an election contestant following a verification process by the KPU.”

The Petitioners have passed the verification process and declared as contestants in the 2019 Election but did not pass the parliamentary threshold stipulated in Article 414 paragraph (1) of the Election Law, which is 4% of the total national valid votes, to compete for the House of Representatives (DPR) seats.

They have been very disadvantaged by the enactment of Article 173 paragraph (1) of the Election Law, which imposes an obligation on the Petitioners to continuously carry out administrative and factual verifications whenever participating in an election. If the Petitioners not have sufficient capacity for such a cost-and energy-consuming obligation, they will be automatically prevented from using their political right to participate in the election. They are more disadvantaged as the Court has ruled on the norm several times and put the burden of administrative and factual verifications on election contestants.

Most recently, the Court ruled in Decision No. 55/PUU-XVIII/2020, that the clause “A Political Party Contesting in the Election shall be that which has passed verification by the KPU” is unconstitutional and not legally binding insofar as not interpreted as “A Political Party that has passed the 2019 Election verification and passed/fulfilled the Parliamentary Threshold in the 2019 Election shall undergo administrative verification but not factual one, while a political party that did not pass/fulfill the parliamentary threshold, that only has representation at the provincial/regency/city level, and that does not have representation at the provincial/regency/city level must undergo administrative and factual re-verifications, as does any new political party.”

Administrative Verification Only

The Petitioners argue that administrative and factual verifications are a technical and procedural aspect to ensure that political parties participating in the election meet the qualifications determined by laws and regulations. This process is acceptable to apply to new political parties because their participation in elections must be checked to ensure their accountability and capability to facilitate the implementation of popular sovereignty through elections.

“However, for political parties that have participated in elections, whose qualifications have been tested because they have passed [requirements] and are allowed to take part in elections, administrative and factual re-verifications are irrelevant. This is because such political parties have passed administrative and factual verifications before participating in the previous general election. Its position is different from that of a political party that has just been established and has never participated in an election. Political parties that have participated in elections have proven their work and have carried out their functions as media for the people to exercise sovereignty according to the Constitution. Therefore, the votes obtained by political parties in the previous election, even if minimal and failed to meet the 4% parliamentary threshold, should not be ignored because [they] are a tangible manifestation of the people’s sovereignty implemented according to the Constitution,” Yusril Ihza Mahendra said.

He said new political parties need administrative and factual verifications while those that participated in the previous election should only be required to undergo an administrative one. Meanwhile, those that passed the parliamentary threshold have proven their worth and performance in the House through their representatives, so there is legal ground for the Constitutional Court not to impose either verification on them. He also stressed that imposing the same verification requirement on both old and new parties was against the principle of popular sovereignty.

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul noted that the petition had met the Constitutional Court Regulation (PMK) No. 2 of 2021 in terms of the Petitioners’ profiles, the Court’s authority, the Petitioners’ legal standing, the posita, and the petitum. However, he advised them to explain each party’s statute/bylaw regarding their representation, whether only the chairman or can be the secretary-general or treasurer.

Meanwhile, Constitutional Justice Suhartoyo advised the Petitioners to ensure that their arguments are not ne bis in idem by providing different arguments and background from previous cases, despite the same touchstones, as well as laws and regulations to stress that the petition is not ne bis in idem. He also noted that the substance of the petition was coherent and easy to understand.

Next, panel chair Constitutional Justice Saldi Isra asked the Petitioners to consider whether to include Article 24 paragraph (1) of the 1945 Constitution on Judicial Power as a touchstone.

“Is it appropriate to use the article while the point of contention is the verification of political parties. Please reconsider, because the argument [of the article] is judicial independence, not party verification,” he advised.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/23/2021 15:59 WIB

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

---