Garuda Party Challenges Provision on Resignation to Run in Elections

The preliminary hearing of the judicial review of the Election Law for a petition by the Garuda Party, Thursday (7/7/2022). Photo by Humas MK/Ifa.

Thursday, July 7, 2022 | 19:18 WIB

JAKARTA, Public Relations—The Change Movement Party of Indonesia (Garuda) filed a judicial review petition of Law No. 7 of 2017 on General Elections (Election Law). The preliminary hearing for case No. 68/PUU-XX/2022 was held by the Constitutional Court (MK) virtually on Thursday, July 7, 2022.

Garuda Party chairman and secretary-general Ahmad Ridha Sabana and Yohanna Murtika said through legal counsel Munathsir Mustaman that the party challenged the phrase ‘state official’ in Article 170 paragraph (1) of the Election Law.

Article 170 paragraph (1) of the Election Law reads, “A state official nominated by a Political Party Contesting in an Election or a Coalition thereof as a candidate of president or vice president in a presidential election must resign from their position as a state official, except if they are a president, a vice president, a leader or a member of the MPR, a leader or a member of the DPR, a leader or a member of the DPD, a governor, a vice governor, a regent, a vice regent, a mayor, or a vice mayor.”

The Elucidation to Article 170 paragraph (1) of the Election Law reads, “A ‘state official’ means: a. Chief Justice, Deputy Chief Justice, Associate Justice, and Justice in the Supreme Court; b. Chief Judge, Deputy Judge, and Judges in all judicial bodies, except for ad hoc Judges. c. Chief Justice, Deputy Chief Justice, and Justices of the Constitutional Court; d. Head, Deputy Head, and Members of the Audit Board of Indonesia; e. Chairperson, Deputy Chairperson, and Commissioners of the Judicial Commission; f. Chairperson and Deputy Chairperson of the Corruption Eradication Commission; g. Ministers and state officials at the same echelon with a minister; h. Head of an Official Indonesian Overseas Representative Office serving as a Special Ambassador with Full Authority; and, i. Other State Officials as defined by applicable law.”

Mustaman said that in empowering political parties in the Reform era and in accordance with the wishes of the constitutional amendment drafters, one of the means of democracy that is the presidential election is determined through political parties as stipulated in Article 6A paragraph (2) of the 1945 Constitution, which reads, “A pair of the President and Vice President shall be recommended by political parties or coalition of political parties contesting in the general election before the implementation of the general election.”

“Through political parties, people can realize their right to express opinions about the direction of their lives and futures in society and the state. Political parties can play an important role in providing freedom, equality, and togetherness as an effort to form a unified nation and state,” he told the justice panel led by Constitutional Justice Arief Hidayat.

Mustaman said the Petitioners argued that minsters are state officials excluded from having to resign if nominated as a president/vice president candidate by a political party or a coalition. The current ministers within the Onward Indonesia Cabinet, as well as the Petitioners who nominated a minister as a president/vice president candidate would potentially or inevitably suffer constitutional impairment according to logical reasoning. On the other hand, when a governor or vice governor, a regent or vice regent, a mayor or a vice mayor is nominated as a president/vice president candidate, they would only need a permission from the president, pursuant to Article 171 paragraph (1) of the Election Law.

“Different treatment between ministers and governors, vice governors, regents, vice regents, mayors and vice mayors when nominated as president and vice president by the Petitioner has also harmed and caused injustice to the Petitioners, [in violation of] Article 22E of the 1945 Constitution,” Mustaman emphasized. 

Revision to Petitum

Constitutional Justice Saldi Isra requested that the Petitioners clarify the material in the Election Law that was being petitioned. “Do you want only Article 170 paragraph (1) be reviewed or also the elucidation? It should be clear. The petition contains a request for review of Article 170 paragraph (1) of Law No. 7 of 2017 on General Elections. In fact, if you look at the last part [of the petition], in the petitum, you also ask for a review of the Elucidation to Article 170 paragraph (1),” he said.

Therefore, he added, he asked for the petitum to be corrected if the Petitioners meant Article 170 paragraph (1) without the elucidation. But if he meant both, the subject of the petition should be revised. “Secondly, clarify the argument and the reasons for filing the petition,” he advised.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul highlighted the Petitioners’ legal standing. “In legal terms, you have explained that these Petitioners are the chairperson and secretary-general of the Garuda Party. You have also mentioned in your description based on the statute/bylaw, that these two are the ones who play a role, but it is not directly indicated in the statute/bylaw that the chairperson and secretary-general have the right to represent the party in proceedings or to file the petition in court. It is by appointment. In [different parties] it could be different. It could be only the chairperson, but it could be also with the secretary-general. Some mention it in the statute/bylaw that the treasurer must also participate,” he said.

Constitutional Justice Arief Hidayat (panel chair) also advised the Petitioners to strengthen their legal standing and observe the Court’s decision in which it granted legal standing to political parties. “You have to strengthen your legal standing. There is a decision by the Constitutional Court that granted legal standing to political parties. Please read that decision. There are political parties that were not granted legal standing. Read those decisions to affirm that you have legal standing,” he said. 

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

Translation uploaded on 7/11/2022 09:44 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.

Thursday, July 07, 2022 | 19:18 WIB 338