Deputy Chief Justice Aswanto giving a keynote speech at the national legal webinar by the Forum for Legal Studies and Research of Brawijaya University, Saturday (9/24/2022). Photo by Humas MK/Hendy.
Saturday, September 24, 2022 | 17:13 WIB
JAKARTA (MKRI) — Deputy Chief Justice of the Constitutional Court Aswanto delivered a keynote speech at a national law webinar of the Constitutional Law Festival 2022 (CLFEST 2022) organized by the Forum for Legal Studies and Research (FKPH) of Brawijaya University on Saturday, September 24, 2022.
“This webinar discusses one of the authorities of the Constitutional Court, deciding on the disbandment of political parties, which it has never done. This is important because many aspects need to be studied about this authority, both the substantive study of the reasons for disbanding the parties and the more comprehensive study of procedural law in doing so,” he said at the beginning of his speech.
Political Parties Resulting from Democracy
Deputy Chief Justice Aswanto further explained the follow-up legal consequences if the Court hands down a decision to disband a political party. This is important because this authority relates to political parties’ function as a democratic institution that recruits leaders, administer state power, and give political education.
“Actually, we have been presented with a comprehensive study through in-depth research on the disbandment of political parties in the dissertation of the Dean of the Law Faculty of Brawijaya University, Prof. Dr. Muhammad Ali Syafa’at, which has been published as a book,” he said.
This legal webinar, he added, would bring together thoughts and perspectives to enrich less-studied topics. In the words of Max Weber, political parties are ‘the children of democracy.’ State power is built on democratic principles and guarantee for the rights and freedoms of citizens and induces democratic values in the formation and exercise of government power. Two of the branches of power, the executive and legislative, are based on the trias politica, from a democratic process where political parties are the main players.
“Presidential and vice-presidential candidates can only be proposed by political parties. Lawmaking power rests with the House of Representatives together with the president, who [are elected] through a democratic process whose main component is political parties,” he explained.
Through political parties, the people realize the freedom to assemble and associate. Through the participation of political parties in general or regional elections, the people can exercise their right to vote and to be elected.
“This means that political parties participating in elections play an important role in facilitating the fulfillment of the rights and freedoms of citizens to participate in government affairs through elections,” he continued.
International Covenant on Civil and Political Rights
Deputy Chief Justice Aswanto then explained Article 25 of the International Covenant on Civil and Political Rights (ICCPR) emphasizes that every citizen has rights and opportunities without any distinction based on race, skin color, sex, religion, origin, and so on and without unreasonable restrictions to participate in government affairs either directly or through their periodically elected representatives in elections.
In the ICCPR’s general comment it is emphasized that Article 25 is the heart of a democratic government. The rights guaranteed in this provision are also related to other rights and freedoms such as the right to self-determination, freedom of information and expression, freedom of association, and freedom of assembly. This means that political parties participating in general elections play an important role in facilitating the fulfillment of the rights and freedoms of citizens to participate in government affairs through general elections.
“It can be said that there is no general election without political parties. This statement is certainly not intended to negate the rights of individual candidates in regional head elections or the fact that there are countries that do not have political parties. We can see, for example, a number of small countries in the Pacific such as Tuvalu and a few other countries,” he explained.
These countries without political parties seem to be an exception to the general rule that democracy requires political parties to exercise the power of people’s representation. “Democracy is centered on political parties and it is political parties that drive democracy. However, this is merely to emphasize that in all of these democratic processes, the main component is political parties and through them power is born, which has the duty to carry out the constitutional mandate,” he said.
Reasons for Disbanding Political Parties
With such an important role, Deputy Chief Justice Aswanto said, political parties must be far away from elements that can have a negative impact on democracy. They cannot be founded on an ideology, principles, and goals that are not in line with the state ideology, nor can they carry out activities that are contrary to the philosophy and foundation of the state, i.e. Pancasila and the 1945 Constitution.
If those things happened, there is a constitutional measure in the 1945 Constitution to disband political parties, but can only be proposed by the Government, unlike a judicial review petition, which may be submitted by all citizens from all walks of life.
As a manifestation of the constitutional rights and freedoms of citizens in expression, opinion, assembly, association, and organization, the disbandment of political parties must have substantive reasons. Otherwise, it would be a limitation of human rights, which is regulated in Article 28J of the 1945 Constitution.
The deputy chief justice also said that, as stipulated in Article 68 of the Constitutional Court Law, the dissolution of a political party is to be proposed by the Government on the grounds that its ideology, principles, goals, programs, and activities are contrary to the 1945 Constitution. Article 2 letters a and b of the Constitutional Court Regulation (PMK) No. 12 of 2008 on the Procedure for the Dissolution of Political Parties further details these grounds. Article 2 letter b expands Article 68 paragraph (2) of the Constitutional Court Law, especially on political party activities.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/28/2022 07:43 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.
Saturday, September 24, 2022 | 17:13 WIB 178