The Petitioner’s legal counsels appearing before the Court virtually at the preliminary hearing of the judicial review of Law No. 7 of 2017 on General Elections, Monday (6/20/2022). Photo by Humas MK/Ifa.
Monday, June 20, 2022 | 11:27 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 7 of 2017 on General Elections (Election Law) on Monday, June 20, 2022. The case No. 64/PUU-XX/2022 was filed by the Indonesian Solidarity Party (PSI), represented by its chairman Giring Ganesha Djumaryo and secretary-general Dea Tunggaesti.
The PSI challenges 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.” It believes the article to be in violation of Article 27 paragraph (1), Article 28D paragraphs (1) and (3), and Article 28I paragraph (2) of the 1945 Constitution.
Legal counsel Rian Ernest said at the remote hearing that during the verification of the political parties contesting in the election, the KPU (General Elections Commission) will refer to Article 173 paragraph (2) of the Election Law, which requires that the party has management at the provincial up to subdistrict levels; offices for its management at the provincial and regency/city levels; and a 30% women representation at the central management. For parties sitting in the parliament, this requirement is only checked administratively through necessary documents. Meanwhile, for those not sitting in the parliament, administrative verification is followed by factual verification. As such, Rian said, there has been discrimination against non-parliamentary political parties, which is against Article 28I paragraph (2) of the 1945 Constitution.
Factual Verification for All Parties
The PSI asserted that the Constitutional Court Decision No. 55/PUU-XVIII/2020 had become a basis for the different treatment. Factual verification requires a vast budget, which it compared to the 2020 Regional Election (Pilkada). In order to maintain the democracy, the state organized the 2020 Pilkada without any such different treatment despite it needing vast budgets for the mitigation of COVID-19.
On that basis, the PSI believed that factual verification for all political parties would not put burdens on the state finances and would fulfill the Petitioner’s constitutional right to equality before the law as referred to in Article 28D paragraph (1) of the 1945 Constitution as well as to equality in government as referred to in Article 28D paragraph (3) of the 1945 Constitution.
“The PSI hopes that the democratic festivity will not only be joined by political parties sitting in the parliament but also those who do not, as all parties are organs that live dynamically and, thus, it is only appropriate that they be treated equally and decently,” Rian said at the panel hearing presided over by Constitutional Justices Arief Hidayat, Manahan M. P. Sitompul, and Enny Nurbaningsih.
Therefore, the Petitioner requested that the Court declare Article 173 paragraph (1) of the Election Law unconstitutional and not legally binding insofar as not interpreted as “All political parties, that is, (i) political parties that have passed verification for the 2019 Election and have passed/met the requirement of parliamentary threshold in the 2019 Election; (ii) political parties have passed verification for the 2019 Election and have not passed/met the requirement of parliamentary threshold in the 2019 Election; and new political parties shall have to pass administrative and factual verification by the KPU General Elections Commission.”
Ne Bis In Idem
Constitutional Justice Enny Nurbaningsih advised the Petitioner to elaborate their legal standing and impaired constitutional rights. She also requested that it elaborate the argument against ne bis in idem (the principle that one case cannot be adjudicated twice) so that it could sway the Court’s opinion on the touchstones and background to the petition.
Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to study the norm on which the Court ruled in Decision No. 55/PUU-XVIII/2020, to focus on the Court’s interpretation of the norm reviewed in that case. He also commented on the Petitioner’s legal standing.
“Meanwhile, in terms of legal standing, there has not a statute/bylaw that mentions whether the chairman and secretary-general can represent the party in and out of court,” he said.
Next, Justice Arief Hidayat emphasized the need for observing the development of the Election Law closely, especially the norm being petitioned and ruled by the Court. “Try to be more meticulous in filing the petition and to avoid ne bis in idem so that the constitutional [argument] would be different. So, please point out the differences from the previous petitions that the Court had ruled on,” he said.
The Petitioner was given time until July 4 to revise the petition. The schedule for the next hearing will be informed by the Court’s Registrar’s Office.
Writer : Sri Pujianti
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/20/2022 12:57 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.
Monday, June 20, 2022 | 11:27 WIB 252