Ghea Giasty Italiane (Petitioner) conveying the petition’s subject matter virtually at the preliminary hearing of the judicial review of Law No. 7 of 2017 on General Elections, Wednesday (10/26/2022). Photo by MKRI/Ifa.

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Wednesday, October 26, 2022 | 16:05 WIB

JAKARTA (MKRI)—The Prabowo-Jokowi joint secretariat for 2024–2029 filed a judicial review petition of Article 169 letter n of Law No. 7 of 2017 on General Elections (Election Law) to the Constitutional Court (MK). The preliminary hearing for case No. 101/PUU-XX/2022 was held on Wednesday, October 26, 2022 in the panel courtroom, with Constitutional Justices Arief Hidayat (panel chair), Suhartoyo, and Enny Nurbaningsih presiding.

The group’s coordinator Ghea Giasty Italiane argued that the a quo article, which reads, “Requirements that must be fulfilled by a Presidential and Vice-Presidential candidate are as follows: n. having not served as a president or vice president for 2 (two) tenures in the same position,” contrary to Article 28D paragraphs (1) and (3) of the 1945 Constitution. The Petitioner believes the phrase ‘a president or vice president’ can be interpreted that a candidate who has served for five years can be reelected for the same position only once, where one has served as a president and vice president in the same or different term.

The provision, Ghea argued, was ambiguous if contrasted to Article 7 of the 1945 Constitution, because it does not provide certainty over the presidential and vice-presidential candidacy. In short, a vice president who has not served twice can join another presidential candidate.

“In essence, the president and vice president are two different positions. So, can we nominate the President (Joko Widodo) as a vice president alongside Mr. Prabowo? In our opinion, it is legal,” she said virtually. 

Justices’ Advice

Constitutional Justice Enny Nurbaningsih observed the petition’s inconsistence in mentioning the article petitioned. She also said that the Petitioner’s legal standing must be clear in that the legal basis for representation to the Court must be clarified. This would relate to the elaboration of the Petitioner’s legal standing and impaired or potentially impaired constitutional rights.

“The constitutional impairment that the group suffers is not elaborated since there is no explanation of the presidential and vice-presidential candidacy. What is the relation to the Petitioner’s loss? This must be clarified,” she explained.

She also commented that the inconsistency of the norm petitioned against the 1945 Constitution had not been explained. She advised that the Petitioner add theories or a comparison to similar provisions in other countries.

Meanwhile, Constitutional Justice Suhartoyo observed that since a judicial review petition only consists of the Court’s authority, the Petitioner’s legal standing, the background of the petition, and the petitum, no other matters should be included. If there is any, it should be included in one of those parts. He also questioned whether the Petitioner is an individual citizen or a legal entity, which would affect the argument on constitutional impairment due to the a quo article.

“The correlation between the Petitioner and the Election Law is not clear. The legal subject and the assumed constitutional impairment must be clear and cumulative. In the posita, the a quo article is interpreted as the tenure if the [presidential and vice-presidential] candidates must be the same and [serve] consecutively. The limitation of the presidential position is very strict,” he explained.

Constitutional Justice Arief Hidayat requested that the Petitioner consider the consistency between the profile in the beginning of the petition and the party whose legal standing will be explained in the case. He also recommended that the petitum be something that is attainable and possible in a legal case.

“Find out if the president cannot serve, who will replace them. If the president has served twice and become a vice president and the president cannot serve, can the vice president take over?” he asked.

Before concluding the session, Justice Arief informed the Petitioner that they had until Tuesday, November 8 at 13:30 WIB to submit the revised petition. The Petitioner will be summoned for the next hearing. 

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/27/2022 11:00 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.

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