Perludem challenging Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors, Thursday (9/8/2022). Photo by MKRI/Hamdi.

---

Thursday, September 8, 2022 | 15:28 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held the judicial review hearing of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) on Thursday, September 8, 2022. The petition No. 85/PUU-XX/2022 was filed by the Association for Elections and Democracy (Perludem), represented by chairperson Khoirunnisa Nur Agustyati and treasurer Irmalidarti. They challenge Article 157 paragraphs (1), (2), (3) of the Pilkada Law, which reads:

1. “Cases of disputes over the results of election shall be examined and tried by a special judicial body.”
2. “The special judicial body as referred to in Article (1) shall be established before the implementation of a national simultaneous election.”
3. “Cases of dispute over the final vote acquisition results of the election of Governors, Regents, and Mayors shall be examined and tried by the Constitutional Court until the establishment of a special judicial body.”

Before Constitutional Justices Enny Nurbaningsih (panel chair), Arief Hidayat, and Suhartoyo, the Petitioner through legal counsel Fadli Ramadhanil asserted that an effective, efficient, and fair electoral results settlement system is important in administering an effective, efficient, and fair election of governors, regents and mayors.

“The law enforcement system is one of the basic and fundamental instruments of an election of governors, regents, and mayors in order to comply with the principles of direct, public, free, confidential, honest, and fair elections as regulated in Article 22E paragraph (1) of the 1945 Constitution,” Fadli stressed.

He emphasized the importance of such a system because of the competition and potential conflict. A lot of interests are banked on the electoral process. Election participants and organizers, as well as citizens involved in the election either directly or indirectly try to achieve victory, one of which is through pilkada results dispute resolution.

In this context, Fadli said, the provisions of pilkada results dispute resolution is an important part of the law enforcement system, as it serves as the last line of defense in protecting the process and results of the regional elections so that they remain in line with the principles of electoral democracy and integrity.

“We believe the provision of the a quo Law would result in chaotic pilkada results dispute resolution, since it wouldn’t be possible to prepare a special judicial body in a short time before the start of the stages of the national simultaneous regional election. Until today, there is no [clarity on] the form of institution and its authority, the mechanism and institutional existence. With these provisions and situation, in our opinion, it has resulted in the threat to an important stage of the election process, namely the finalization of the election,” he said.

Fadli added that the a quo provisions would also potentially disrupt the through pilkada results dispute resolution since there had not been any preparation for the election. The Petitioner asserted that the Court’s latest decisions on pilkada results disputes based on the provisions in the a quo Law were unconstitutional.

The Petitioner argued that after the Constitutional Court Decision No. 55/PUU-XVII/2019, the provision on the special judicial body in the a quo Law had followed up on the Constitutional Court No. 97 of 2003 on the judicial review of Law No. 12 of 2008 on the Second Amendment to Law No. 32 of 2004 on the Regional Government, both of which have been annulled and are no longer valid.

Tried by Constitutional Court

The provision on a special judicial body for pilkada cases must be invalidated as it contradicts the 1945 Constitution, because it is within the Constitutional Court’s jurisdiction, the Petitioner asserted. It has also led to legal uncertainty where the Constitutional Court had declared pilkada to be within the general election regime and its implementation can be simultaneous with the election of the president, the House of Representatives (DPR), the Regional Representatives Council (DPD), and the Regional Legislative Council (DPRD). The Constitutional Court left it to the legislature to design the simultaneity of the elections, following strict prerequisites as mentioned in Decision No. 55/PUU-XVII/2019.

However, the Pilkada Law still mentions a special judicial body to settle pilkada cases. This, the Petitioner asserted, has led to serious legal uncertainty and, thus, must be declared unconstitutional.

In the petitum, the Petitioner requested that the Court overrule Article 157 paragraph (1) of the Pilkada Law if not interpreted as “Cases of disputes over the results of election shall be examined and tried by the Constitutional Court;” Article 157 paragraph (2); and Article 157 paragraph (3) if not interpreted as “Cases of dispute over the final vote acquisition results of the election shall be examined and tried by the Constitutional Court following statutory legislation.”

Justices’ Advice

In response to the petition, Constitutional Justice Arief Hidayat advised the Petitioner to complete the Constitutional Court’s authority. “The structure of the authority must start with the Constitution, then the Judiciary Law, the Constitutional Court Law, and the Lawmaking Law. This has not been elaborated systematically [in the petition],” he said.

He also advised them to strengthen their legal standing as a private legal entity and to show their constitutional impairment.

Meanwhile, Constitutional Justice Enny Nurbaningsih advised the Petitioner to build a strong argument in the background of the petition. Before concluding the session, she announced that the Petitioner had 14 workdays to revise the petition and submit it by Wednesday, September 21, two hours before the session commences.

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/12/2022 10:33 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.

---