Petition revision hearing of the judicial review of the Pilkada Law for case No. 2/PUU-XX/2022, Wednesday (1/26/2022). Photo by Humas MK/BPE.
Wednesday, January 26, 2022 | 13:55 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another hearing of the material judicial review 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 Wednesday, January 26, 2022. The case No. 2/PUU-XX/2022 was filed by Hardizal.
At the hearing chaired by Constitutional Justice Suhartoyo, legal counsel Harli stated that there was the addition of Article 1 paragraph (3) and Article 28i paragraph (4) as well as the merit of the case. In addition, to avoid ne bis in idem with the case No. 99/PUU-XV/2018 on the phrases ‘narcotics dealer’ and ‘narcotics user,’ in which the petitioner challenged the equation of the phrase ‘as well as other violations of decency’ and the use of psychotropic. The Petitioner had been in the possession of psychotropic drugs, thus was equated with a narcotics user. Harli stressed that the Petitioner had only possessed the drug, but not used it.
Also read: Former Drug Convict Challenges Regional Head Requirements
At the preliminary hearing on Thursday, January 13, 2022, Harli, the legal counsel of Petitioner Hardizal, revealed that the Petitioner is a former drug convict who had completed his sentence and had run in the 2020 Sungai Penuh City election. During the registration period, he had received a mandate letter from the Indonesian Democratic Party of Struggle (PDI-P), the United Development Party (PPP), and the Berkarya Party. At the end of the registration period, the Berkarya Party withdrew their support, citing his criminal record as a drug user, which was based on his SKCK (police clearance certificate). PDI-P and PPP also withdrew their support and gave it to another candidate pair.
The Petitioner challenges Article 7 paragraph (2) letter i and the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law. Article 7 paragraph (2) letter i reads, “Candidates Governor and Candidates for Vice Governor, Candidates for Regent and Vice Regent, and Candidates for Mayor and Vice Mayor, as referred to in paragraph (1) must meet the following requirements: (i) has never committed any disgraceful acts, proven by a police certificate….” The Elucidation to Article 7 paragraph (2) letter i reads, “What is meant by ‘committing disgraceful acts’ include gambling, intoxication, becoming a narcotics user/dealer, and adultery, as well as other violations of decency.”
The Petitioner believes that the enactment of Article 7 paragraph (2) letter i and the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law had violated the Petitioner’s constitutional right to be a head of region as regulated in Article 18 paragraph (4) of the 1945 Constitution, i.e. the right to vote and be voted (active and passive rights). His active right as a regional election candidate was restricted by the provision. The Petitioner believes the provision must apply accumulatively.
Harli added that former corruption convicts who have been tried and finished their sentences could run in the regional election, while those convicted of drug use are restricted for life. He argued that SKCK should not restrict this right to be elected.
The enactment of the norms petitioned, he added, had eliminated the Petitioner’s opportunity to become a candidate of head of region or his right to be elected for life. Harli requested that the Petitioner be given the same right afforded to former corruption convicts.
In addition, in the petition, the Petitioner explained that the norms, which declare disgraceful acts one of the accumulative prerequisites to the regional head candidacy is not consistent with Law No. 12 of 1995 on Corrections.
The restoration of the rights and freedoms of a person who has served a criminal sentence is also the goal of the correctional system based on the Correctional Law. The scope of the disgraceful acts referred to in the Elucidation to Article 7 paragraph (2) letter i is too broad, where in general they can be categorized into two. First, the disgraceful acts regulated by the Criminal Code and Special Crimes, Criminal Liability can be carried out with two important aspects: with procedure (formal) and material (substantive). Second, the legal basis for other acts of violation of decency is not clear. As such, the vast extent of disgraceful acts and the absence of opportunity for self-defense in Article 7 paragraph (2) letter i of Law No. 10 2016 have implications on citizens.
Writer : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 01/26/2022 14:57 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.
Wednesday, January 26, 2022 | 13:55 WIB 228