Constitutional Justice Manahan M. P. Sitompul reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 7 of 2017 on General Elections, Wednesday (8/31/2022). Photo by MKRI/Ifa.
Wednesday, August 31, 2022 | 19:41 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) rejected the entire judicial review petition of Law No. 7 of 2017 on General Elections (Election Law) filed by the Indonesian Solidarity Party (PSI) at the ruling hearing for case No. 64/PUU-XX/2022 on Wednesday, August 31, 2022 in the plenary courtroom, presided over by Chief Justice Anwar Usman and the other eight constitutional justices.
“The constitutional issue in the a quo petition is the different treatment in the verification of political parties, especially factual verification, between political parties that passed the verification for the 2019 Election and have passed/met the parliamentary threshold for the 2019 Election, and the Petitioner, who passed the verification for the 2019 Election but did not pass/meet the parliamentary threshold for the 2019 Election or for a new political party,” said Constitutional Justice Manahan M. P. Sitompul reading out the Court’s legal considerations.
The Court, Constitutional Justice Arief Hidayat added, had made its stance on the verification of political parties contesting in elections in Decision No. 55/PUU-XVIII/2020, following Article 173 paragraph (1) of the Election Law.
He asserted that despite dissenting and concurring opinions in said decision, the Court stood by its ruling that 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,” is unconstitutional and not legally binding if not interpreted as “political parties that have passed verification for the 2019 Election and have passed/met the requirement for parliamentary threshold in the 2019 Election, political parties that have passed verification for the 2019 Election and have not passed/met the requirement for parliamentary threshold in the 2019 Election, political parties that only have representation at the provincial/regency/city DPRD, and political parties that do not have representation at the provincial/regency/city DPRD shall have to pass administrative and factual verification, which also applies to new political parties.”
The Court also stressed that since the content that the Petitioner challenged was in essence the same as what it had ruled in Decision No. 55/PUU-XVIII/2020, despite having different touchstones and background, the legal considerations in that decision also applies to that for the a quo decision.
Therefore, based on the aforementioned legal considerations, the Court declared the entire petition legally groundless and that irrelevant other matters were not considered.
Dissenting Opinion
Three of the justices—Constitutional Justices Saldi Isra, Suhartoyo, and Enny Nurbaningsih—expressed a dissenting opinion. They asserted that since the legal considerations to reject the a quo petition applied to that in Decision No. 55/PUU-XVIII/2020, they also referred to their considerations for the dissenting opinion for that decision.
Relating to the legal considerations for Decision No. 52/PUU-X/2012, the three justices stood by their view that it was relevant to maintain the verification of political parties for simplification purposes. The fact that the number of political parties contesting in the 2019 Election was higher than that in the 2014 Election strengthened the Court’s legal considerations for Decision No. 53/PUU-XV/2017, where it asserted that verification could boost the parties’ readiness to contest in the election.
The legal considerations for Decision No. 53/PUU-XV/2017 stemmed from the spirit that all political parties intending to contest in the election must be treated equally. Any discrimination that results in unfairness must be eliminated. Preferential treatment for certain political parties would be against the mandate of the Constitution.
Upon careful and comprehensive observation, the legal arguments in the a quo petition for equal treatment for all political parties intending to contest in the election require that administrative and factual verification be upheld. Following the Petitioner’s arguments, factual verification is necessary because without it, the KPU (General Elections Commission) as an election organizer would only rely on the documents submitted by the parties. Meanwhile, empirical facts such as those in the 2019 verification show that there could be gaps in the administrative data and the results of factual verification, such as in terms of number of members and regional representation. In addition, factual verification is necessary because of the proliferation and formation of regions. As such, the three justices agreed with the idea that factual verification was the core of political party verification.
The substance and message of the Decision No. 53/PUU-XV/2017, the three justices added, showed that eliminating discrimination in the verification of political parties that intend to contest in the election would be the embodiment of the fulfillment of “the right to recognition, guarantee, protection, and fair legal certainty as well as equal treatment before the law” as stipulated in Article 28D paragraph (1) 1945 Constitution.
As such, they believed that some of the Petitioner’s arguments that administrative and factual verification must apply equally to all parties to contest in the election was in line with the substance of the Decision No. 53/PUU-XV/2017 and their dissenting opinion in the Decision No. 55/PUU-XVIII/2020, and are based on the effort to meet the basic “right to recognition, guarantee, protection, and fair legal certainty as well as equal treatment before the law” as stipulated in Article 28D paragraph (1) 1945 Constitution. As such, they stood by their opinion that all political parties must undergo both administrative and factual verification in order to contest in the election, and they believe the Court must have granted the a quo petition.
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PSI Challenges Discrimination during Party Verification
PSI Revises Petition Against Election Law
At the preliminary hearing on Monday, June 20, 2022, the Indonesian Solidarity Party (PSI) conveyed its challenge against 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.
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.
The party 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.”
Writer : Utami Argawati
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/6/2022 15:39 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, August 31, 2022 | 19:41 WIB 295