Deputy Chief Justice Aswanto (panel chair) with Constitutional Justices Enny Nurbaningsih and Manahan M. P. Sitompul opening the judicial review hearing of Law No. 7 of 2017 on General Elections virtually, Monday (1/17/2022). Photo by Humas MK/Bayu.

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Tuesday, January 18, 2022 | 00:12 WIB

JAKARTA, Public Relations—The provision on presidential threshold was challenged again in the Constitutional Court (MK), this time by Tamsil Linrung, Fahira Idris, and Edwin Pratama Putra. The preliminary hearing took place virtually on Monday, January 17, 2022. In case No. 6/PUU-XX/2022, the Petitioners challenged Article 222 of Law No. 7 of 2017 on General Elections (Election Law).

The article reads, “A presidential candidate ticket shall be nominated by a political party (or a coalition thereof) contesting in an election that has managed to win at least 20% (twenty percent) of DPR seats or 25% (twenty-five percent) of national valid votes in the previous election of members of the DPR.”

The Petitioners’ legal counsel Ahmad Yani explained their legal standing as individual citizens who have the right to vote in presidential elections.

“The Petitioners believe their constitutional rights and/or authorities were harmed by the enactment of this law. They do not act on behalf of the Regional Representatives Council DPD) but as Indonesian citizens,” he said to the presiding justices—Deputy Chief Justice Aswanto (chair), Constitutional Justice Manahan M. P. Sitompul, and Constitutional Justice Enny Nurbaningsih.

The Petitioners argued that in a conceptual normative construct, Article 6A paragraph (2) of the 1945 Constitution stipulates that the right to vote and the right to be a candidate are constitutional rights, which bases the Court’s legal considerations in reviewing laws regarding general elections.

The enactment of the a quo law has directly or indirectly, or at least potentially, harmed the Petitioners’ constitutional rights to have more presidential-vice presidential candidates. Their constitutional right as voters to vote for a presidential ticket directly, which is guaranteed by Article 6A paragraph (2) of the 1945 Constitution, has been harmed by the threshold, which is not based on the 1945 Constitution.

The Petitioners believe that the threshold is not an open legal policy but a legal policy that has been explicitly stipulated in the 1945 Constitution and is not to be delegated to any legislation. The policy to be delegated, instead, is the procedure of the presidential elections, which is based on Article 6 paragraph (2) and Article 6A paragraph (5) of the 1945 Constitution.

The presidential threshold, which is based on the results of legislative election five years prior, is not logical and not in line with the notion of simultaneous elections, the Petitioners argued. Not to mention, there are no country other than Indonesia that adopts the presidential system that practices such a threshold.

Justices’ Advice

In response to the Petitioners’ arguments, Deputy Chief Justice Aswanto (panel chair) recommended that they study the Constitutional Court Decision No. 74/PUU-XVIII/2020, which explains that the petitioners who have legal standing to challenge Article 222 of the Election Law on presidential threshold are political parties.

“Please re-elaborate the legal standing to convince the Court that not only political parties have legal standing in relation to presidential threshold,” he said.

Similarly, Constitutional Justice Enny Nurbaningsih highlighted the Petitioners’ legal standing and advised them to elaborate on their constitutional impairment.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to study the Constitutional Court Regulation No. 2 of 2021 on the format of the petition and to include the complete name of the norm in the explanation of legal standing. “How can [the Court] review the touchstones mentioned in the petition when the norm is not mentioned?” he asked.

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

Translation uploaded on 01/18/2022 11:40 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.

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