Constitutional Justices Suhartoyo and Saldi Isra at the ruling hearing of the material judicial review of Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors, Tuesday (5/31/2022). Photo by Humas MK/Ifa.
Tuesday, May 31, 2022 | 17:46 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) ruled to grant part of the petition against 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) in Decision No. 2/PUU-XX/2022 on Tuesday, May 31, 2022. The material judicial review was filed by Hardizal, a former drug convict.
In its legal considerations read out by Constitutional Justice Suhartoyo, the Court asserted that requirements for candidates were necessary in the election of regional heads and deputy regional heads in order to realize essential democracy—democracy that is not only based on the majority of votes but that embodies the noble goal of realizing a prosperous society led by leaders with integrity and quality resulting from electoral process involving their constituents. Although the Court believed such requirements important for initial selection, it has also ruled that some requirements stipulated by the law could be unconstitutional and must be interpreted.
Since the Decision No. 4/PUU-VII/2009, the Court has also interpreted the requirement of never being convicted of crimes several times in its decisions, most recently in Decision No. 56/PUUXVII/2019, dated December 11, 2019, where it ruled that candidates for regional heads and deputy regional heads must meet conditions (i) never having been a convict based on a court decision that has obtained permanent legal force for committing a crime punishable by imprisonment of 5 (five) years or more, except for the convict who commits a crime of negligence and a political crime in the sense of any act that is declared a criminal act in positive law only because the perpetrator has a different political view from the regime in power; (ii) for former convicts, a period of 5 (five) years having passed after the former convict has finished serving their prison sentence based on a court decision that has permanent legal force and honestly or publicly announces their background as a former convict; and (iii) not being a repeat offender.
Phrase “Narcotics User”
The Court declared the phrase “narcotics user” in the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law constitutional, but in its legal considerations it interpreted that disgraceful character was inappropriately attached to: a. a narcotics user who use narcotics for health reasons as proven by a statement from a doctor who treats the user in question; or b. an ex-narcotics user who, because of their own conscience, reported themselves and has completed rehabilitation; or a former narcotics user who is proven to be a victim and based on court decisions/decision ordered to undergo rehabilitation and has been declared to have completed the rehabilitation as evidenced by a certificate from a state agency that has the authority to declare a person having completed rehabilitation.
Opportunities for Ex-Convicts
Justice Suhartoyo further read out the Court’s considerations in previous decisions related to former convicts who were subject to imprisonment of five years or more and had held the opinion that former convicts who had completed their sentence could seek election as regional heads and deputy regional heads as long as five years has passed since they completed their sentence and they honestly or openly announce they background as a former convict, and are not repeat offenders.
Therefore, in Decision No. 56/PUU-XVIII/2019, the Court has given candidates who are former convicts sentenced to five years or more the opportunity to seek election as regional heads and deputy regional heads as long as they meet the requirements specified in Article 7 paragraph (2) letter g of the Pilkada Law, since the final assessment of those candidates falls in the hand of the constituents.
Requirements for Regional Head Candidates
With regard to the requirements stipulated in Article 7 paragraph (2) letter i of the Pilkada Law and its Elucidation, the Court in Decision No. 99/PUU-XVI/2018 excluded the requirement not to commit disgraceful acts for narcotics users who used narcotics for health reasons, or ex-narcotics users who, because of their own conscience, reported themselves and have completed rehabilitation; or former narcotics users who are proven to be victims and have been declared having completed the rehabilitation.
“Therefore, if one meets other requirements, they can seek election as a candidate for regional head and deputy regional head without being categorized as having committed a disgraceful act as referred to in the Elucidation to Article 7 paragraph (2) letter i of Law No. 10 of 2016,” Justice Suhartoyo said.
Thus, he added, the next question to answer was other ex-convicts outside of Article 7 paragraph (2) letter g of the Pilkada Law as interpreted by the Constitutional Court Decision No. 56/PUU-XVIII/2019 and those who have finished serving their sentence for committing disgraceful acts as contained in the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law such as gambling, intoxication, adultery, and narcotics dealing, including other violations of decency. Are the perpetrators of criminal acts or other acts referred to in the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law who have been sentenced by the court and have completed their sentence ineligible to seek election?
SKCK Requirement
The Court also stated that the requirement for never committing a disgraceful act as evidenced by a police clearance certificate (SKCK) was only an administrative one. It is not an indicator that concludes that a regional head/deputy head candidate is a legal subject with a track record that might exclude them from a regional election. This is because one could who commit a criminal act referred to in the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law due to negligence and the act could be infractions/misdemeanors in contrast to the crimes laid out in Article 7 paragraph (2) letter g of the Pilkada Law.
“Thus, according to the Court, there will be disparity in the perspective of legal justice and constitutional rights justice if the perpetrators of criminal acts punishable by five years or more are given the opportunity to seek election as regional heads as regulated in Article 7 paragraph (2) letter g of Law No. 10 of 2016, which has been interpreted through Decision No. 56/PUU-XVII/2019, while perpetrators of violations of decency in the Elucidation to Article 7 paragraph (2) letter i of Law No. 10 of 2016 that have been sentenced by the court and served their sentence are barred from seeking election as regional heads and deputy regional heads, even if other conditions are met by the person concerned,” Justice Suhartoyo added.
To create legal certainty and a sense of justice, the Court has no other choice but to provide equal opportunities for perpetrators of disgraceful acts who have been sentenced by the court and have completed their sentence to seek election as regional heads and deputy regional heads. Thus, even though the SKCK requirement referred to in Article 7 paragraph (2) letter i of the Pilkada Law still apply to those candidates, it must not restrict them in the election providing that they have met other requirements. In other words, the SKCK requirement does not apply to those candidates.
Also read: Former Drug Convict Challenges Regional Head Requirements
Confession of Criminal Record
Because the strict requirements are in place for seeking candidates for regional leaders that have integrity, such candidates who have served a sentence for the acts referred to in the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law are allowed the opportunity to seek election, and the choice is left to the voters/community. However, they are obligated to provide full information of themselves by confessing their criminal record, as mandated by Article 7 paragraph (2) letter g of the Pilkada Law, which the Court has interpreted in Decision No. 56/PUU-XVII/2019.
In addition, the Court also emphasized that the regional election organizers, including the Police who are authorized to issue SKCK, must immediately design the SKCK format as required in Article 7 paragraph (2) letter i of the Pilkada Law.
As a result, in its verdict, the Court granted Hardizal’s petition in part. The Court declared that the Elucidation to Article 7 paragraph (2) letter i of the Pilkada Law unconstitutional and not legally binding as long as it was not interpreted “except for perpetrators of disgraceful acts who have obtained court decisions that have permanent legal force and have finished serving their sentence, and honestly or openly announce their background as former convicts.”
Also read: Former Drug Convict Revises Petition on Pilkada Law
At the preliminary hearing on Thursday, January 13, 2022, Harli, the Petitioner’s legal counsel, revealed that the Petitioner was 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 believed 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 his 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 believed 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.
Writer : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/3/2022 10:13 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.
Tuesday, May 31, 2022 | 17:46 WIB 172