Court’s Authority to Rule Regional Election Disputes Permanent
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Constitutional Justice Enny Nurbaningsih reading out the Court’s legal considerations at the ruling hearing of the judicial review of Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors, Thursday (9/29/2022). Photo by MKRI/Ifa.


Thursday, September 29, 2022 | 21:33 WIB

JAKARTA (MKRI)—The Constitutional Court’s (MK) authority to resolve regional head election results disputes is now permanent. This was affirmed in the Decision No. 85/PUU-XX/2022 read out on Thursday, September 29, 2022. In the verdict, the Court declare the phrase ‘until the establishment of a special judicial body’ in Article 157 paragraphs (3) 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) unconstitutional.

“[The Court] declared to grant the Petitioner’s provisional petition; grant the Petitioner’s petition in its entirety; declare the phrase ‘until the establishment of a special judicial body’ in Article 157 paragraphs (3) 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 contrary to the 1945 Constitution of the Republic of Indonesia and not legally binding,” said Chief Justice Anwar Usman reading out the verdict for the case filed by the Association for Elections and Democracy (Perludem), represented by chairperson Khoirunnisa Nur Agustyati and treasurer Irmalidarti.

Also read: Perludem Requests Pilkada Disputes Be Tried by Constitutional Court 

Court’s Authority Permanent

Constitutional Justice Enny Nurbaningsih, who read out the Court’s legal considerations, said Article 157 paragraphs (1) and (2) of the Pilkada Law, which regulates plans for the establishment of a special judicial election court, is a sine qua non condition for Article 157 paragraph (3) of the Pilkada Law, which regulates the institution temporarily given the authority to become an electoral judicial body during the transitional period or when the special election court has not yet been established.

Justice Enny added that the unconstitutionality of Article 157 paragraphs (1) and (2) of the Pilkada Law led to loss of temporariness in Article 157 paragraph (3). Thus, the Constitutional Court’s authority to examine and adjudicate disputes over election results will no longer be limited to only ‘until the establishment of a special judicial body,’ but be permanent, because such a special judicial body will no longer be established.

“In order to clarify the meaning of Article 157 paragraph (3) of Law No. 10 of 2016, which no longer contains a temporary nature, according to the Court, the phrase ‘until the establishment of a special judicial body’ must be crossed out or declared contrary to the 1945 Constitution. By omitting the phrase, Article 157 paragraph (3) Law No. 10 of 2016 should read in full: ‘Cases of disputes over the results of election shall be examined and tried by the Constitutional Court,’” Justice Enny said.

Meaning of Election in Constitution

The interpretation of the 1945 Constitution, which no longer distinguishes between the national general election and the regional head election, Justice Enny added, systematically results in changes in the interpretation of the Constitutional Court authority as regulated in Article 24C paragraph (1) of the 1945 Constitution, which stipulates that the Constitutional Court has the authority to adjudicate at the first and final levels, with decisions are final to, among other things, decide disputes over the results of the general election.

“Furthermore, such a constitutional meaning is revealed in various laws related to the Constitutional Court authority, especially the Judiciary Law. In the end, such norms must be understood that cases of dispute over the general election results adjudicated by the Constitutional Court consist of [that on] general election to elect the president and vice president; members of the House of Representatives; members of the Regional Representatives Council; members of the Regional Legislative Council at the province, district, or city level; and heads of provinces, districts, and cities,” she explained.

Also read: Absence of Pilkada Dispute Ruling Body a Serious Issue, Petitioner Asserts

Judicial Power

Justice Enny also said that another thing the Court should consider is that the special body mandated by Article 157 paragraphs (1) and (2) of Law No. 10 of 2016 is a judicial body, which the Court believes must be under the judicial power as regulated in Chapter IX on Judicial Power of the 1945 Constitution.

To the Court, she added, all norms on judicial institutions are regulated in the same chapter, which consists of Articles 24 and 24C of the 1945 Constitution. The judiciary, as an independent power to administer justice, is exercised by a Supreme Court and the judicial bodies under it as well as by a Constitutional Court. Such restrictions in the 1945 Constitution ultimately dismissed the possibility of the establishment of a special election body that is not under the Supreme Court or the Constitutional Court. The choice from such a constitutional restriction is that it must be under either the Supreme Court or the Constitutional Court. However, the Court did not see such a choice appropriate nor constitutional.

“Especially if the special judicial body is planned to be formed separately and then placed under the Constitutional Court, this would require a more legal change considering that the Constitutional Court is strictly limited by the 1945 Constitution and its implementing regulations. A more normative or efficient alternative is not to form a special judicial body and place it under the Constitutional Court, but to directly make it an authority of the Constitutional Court,” said Enny.

Justice Enny asserted this is in line with the mandate of Article 24C paragraph (1) of the 1945 Constitution because the regional head election is a general election as referred to in Article 22E of the 1945 Constitution. Thus, the Petitioner’s argument that Article 157 paragraphs (1) and (2) and the phrase ‘until the establishment of a special judicial body’ in paragraph (3) of Law No. 10 of 2016 contradicted Article 1 paragraph (3), Article 22E, Article 24C paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution was legally grounded in its entirety.

Not Formed Yet

The Court has been adjudicating disputes over the results of the regional head elections since the authority was transferred from the Supreme Court to the Constitutional Court in 2008, although in Decision No. 97/PUU-XI/2013 it argued they should not be handled by the Constitutional Court.

“Despite the conceptual/theoretical objection raised by the Court through the Decision No. 97/PUU-XI/2013, such legal facts show that in reality the Court is still carrying out its role as a special election judicial body temporarily. Such a role, once again, from the perspective of Indonesian law, since transferred from the Supreme Court to the Constitutional Court in 2008, has never been carried out by a judicial institution other than the Supreme Court and the Constitutional Court,” said Constitutional Justice Arief Hidayat reading out the legal considerations.

He added that ideally a temporary legal authority must have a time limit. As such, when Article 201 paragraph (8) of Law No. 10 of 2016 stipulates that national simultaneous elections be held in November 2024, legal reasoning directs that the temporary authority mandated to the Constitutional Court must end before the month and year in question.

“However, until [this hearing], the Court has not seen any concrete efforts from the legislature to establish a special judicial body tasked with adjudicating or resolving disputes over the results of regional head elections. In fact, with the advancement of the schedule for the simultaneous regional head elections nationally to November 2024, efforts to establish a special judiciary must become an urgent agenda,” he stressed.

Perludem challenged the content of Article 157 paragraphs (1), (2), and (3) of the Pilkada Law. The Petitioners believed it would be dangerous for the regional head election results disputes to be set to resolve before the special judicial body was established.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/18/2022 09:55 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, September 29, 2022 | 21:33 WIB 200