Interpretation of Requirements for Ministers Who Run as Presidential Candidates
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Plenary ruling hearing for the judicial review of Law No. 7 of 2017 on General Elections for case No. 68/PUU-XX/2022, Monday (10/31/2022). Photo by MKRI/Bayu.


Monday, October 31, 2022 | 15:48 WIB

JAKARTA (MKRI)—The resignation requirement for state officials to run as a presidential or vice-presidential candidate as per Article 170 paragraph (1) of Law No. 7 of 2017 on General Elections (Election Law) has been reinterpreted. The Constitutional Court (MK) declare the norm not legally binding conditionally if not interpreted as “A state official nominated by a Political Party Contesting in an Election or a Coalition thereof as a candidate of President or Vice President must resign from their position, except if they are a President, a Vice President, a leader or a member of the MPR, a leader or a member of the DPR, a leader or a member of the DPD, a governor, a vice governor, a regent, a vice regent, a mayor, or a vice mayor, a minister or a ministerial-level official, if the minister or ministerial-level official received approval and permit of leave of absence from the President.”

This was the verdict in Decision No. 68/PUU-XX/2022, which Chief Justice Anwar Usman read out alongside the other eight constitutional justices at a ruling hearing in the plenary courtroom on Monday, October 31, 2022.

“[The Court] declares the phrase ‘a minister or a ministerial-level official’ in the elucidation to Article 170 paragraph (1) of Law No. 7 of 2017 on General Elections (Election Law) unconstitutional and not legally binding conditionally if not interpreted as ‘What is meant by ‘a state official’ in this provision shall include: a. Chief justice, deputy chief justice, junior chief justice, and justice of the Supreme Court; b. Chief judge, deputy chief judge, and judge of all courts, except ad hoc judge; c. Chief justice, deputy chief justice, and associate justice of the Constitutional Court; d. Chairperson, vice chairperson, and members of the Audit Board; e. Chairperson, vice chairperson, and members of the Judicial Commission; f. Chairperson, vice chairperson, and members of the Corruption Eradication Commission; g. Head of representation of the Republic of Indonesia overseas who serves as Ambassador Extraordinary and Plenipotentiary; and h. Other state officials regulated by the law,” said Chief Justice Anwar Usman reading out the decision.

In the considerations read by Constitutional Justice Arief Hidayat, the Court asserted that any citizens who hold certain positions have inherent constitutional rights as citizens to be elected and to vote as long as these rights are not revoked by law or a court decision. Therefore, either elected or appoint to their position, state officials’ constitutional right to be elected and to vote should not be reduced.

The Court asserted that its Decisions No. 41/PUU-XII/2014, 33/PUU-XIII/2015, and 45/PUU-XV/2017—which declared that civil servants (PNS), employees of SOEs/region-owned enterprises (BUMN/BUMD), and legislative members must resign since they are certified regional head candidates by the KPU (General Elections Commission)—concerns neutrality and the potential of abuse of authority. In Decision No. 85/PUU-XX/2022, the Court emphasized that the general and regional elections are of the same regime. Thus, the Court has other considerations in relation to Article 170 paragraph (1) of the Election Law for the filling of those political offices.

The Court asserted that the concern of privileges in those officials is not directly proportional to the protection of their constitutional rights. Moreover, an official needs a long career to arrive at the position. Thus, when they do not have to resign, they can continue their service to the nation and state, even if they lose in the election.

“Different treatment for ministers or ministerial-level officials as state officials who are required to resign following Article 170 paragraph (1) of the Election Law limits the enforcement of constitutional rights. Thus, it is a form of discrimination against political parties when nominating their best cadres as presidential and vice-presidential candidates. In addition, the Court believes this can also harm the constitutional rights of political parties that is guaranteed and protected by Article 28I paragraph (2) of the 1945 Constitution. In its consideration of the conditions for the resignation of state officials including ministers in the phrase ‘a state official’ in Article 170 paragraph (1) of the Election Law, which was argued by the Petitioner, the Court deems it no longer relevant. Therefore, the a quo article must be interpreted conditionally,” said Justice Arief when taking turns reading the Court’s considerations with Deputy Chief Justice Aswanto.

For legal certainty and stability and government sustainability, he added, if ministers and ministerial-level officials, who are excluded, are nominated by a political party or coalition thereof as presidential and vice-presidential candidates, they must obtain approval and permission of leave of absence from the president.

Furthermore, based on the reinterpretation of Article 170 paragraph (1) of the Election Law, the exclusion of resignation requirement in the elucidation, which was argued to be a juridical consequence relating to the phrase ‘ministers and ministerial-level officials,’ must be declared irrelevant and, thus, unconstitutional. Based on that consideration, the a quo article and its elucidation turned out to be discriminatory and in violation of Article 28I paragraph (2) of the 1945 Constitution. Therefore, the Petitioners’ argument was declared legally warranted in part.

Also read:

Garuda Party Challenges Provision on Resignation to Run in Elections

Garuda Party Revises Petition on Election Law

House and President Request Material Review Hearing of Election Law Postponed

If Minister Running for Vice President Must Resign, Administration Will Be Disrupted

Concurring Opinion

Constitutional Justice Saldi Isra expressed a concurring opinion on the partial approval of the petition. He believed that in a government with a presidential system, the appointment and dismissal of ministers is the president’s constitutional authority. Therefore, ministers are responsible to the president. If this was applied in Indonesia, the president’s authority in organizing the cabinet would be very large. Textually, Article 17 paragraphs (1) and (2) of the 1945 Constitution positions ministers as assistants to the president, so the president does not need approval from representative institutions when appointing ministers. This is also confirmed by Article 3 of Law No. 3 of 2008 on State Ministries.

There have not been many studies of a minister in a presidential-system government running as a presidential or vice-presidential candidate. In short, Justice Saldi believed that the prohibition for such a thing is regulated in Law No. 42 of 2008 on the General Election of the President and Vice President. In essence, the request to the president for permission to run in the election serves to enforce governance ethics. Such a ‘prohibition’ and ‘restriction’ aims at producing leaders who have high integrity, moral ethics, and capacities and capabilities.

“The resignation of these officials, including ministers, is only for the smooth running of the government to enforce constitutional political ethics. Without such a restriction on ministers who want to participate in the [election], there will be a dilemma that could potentially harm the presidential government system,” he said.

Justice Saldi revealed that there had been an anomaly in the presidential system in Indonesia, which would be even more unfathomable if a cabinet member defeats the incumbent president. In order to avoid a lame duck situation, where the incumbent president would continue until the end of their term while the newly-elected one has won the election, if there are no restrictions in place, two or more ministers could be proposed as presidential and vice-presidential candidates, resulting in rivalry. Therefore, it is necessary to find a new equilibrium to avoid such a dilemma.

“This new balance is expected to provide an opportunity for ministers or ministerial-level officials to run as presidential and vice-presidential candidates [with the help of] political parties or coalitions thereof as long as the nomination is approved by the president and they are on leave since being appointed as a candidate until the completion of the presidential election,” he explained.

The Garuda Party’s chairman Ahmad Ridha Sabana and secretary-general Yohanna Murtika challenged Article 170 paragraph (1) of the Election Law. They argued that minsters are state officials excluded from having to resign if nominated as a president/vice president candidate by a political party or a coalition. The current ministers within the Onward Indonesia Cabinet as well as the Petitioners who nominated a minister as a president/vice president candidate would potentially or inevitably suffer constitutional impairment according to logical reasoning. On the other hand, when a governor or vice governor, a regent or vice regent, a mayor or a vice mayor is nominated as a president/vice president candidate, they would only need a permission from the president, pursuant to Article 171 paragraph (1) of the Election Law.

The Petitioners believed different treatment between ministers and governors, vice governors, regents, vice regents, mayors and vice mayors when nominated as president and vice president by the Petitioner has also harmed and caused injustice to the Petitioners, [in violation of] Article 22E of the 1945 Constitution. They asserted that the phrase ‘state official’ in 171 paragraph (1) of the Election Law was unconstitutional and not legally binding if not interpreted as “A state official nominated by a Political Party Contesting in an Election or a Coalition thereof as a candidate of president or vice president must resign from their position as a state official, except if they are a president, a vice president, a leader or a member of the MPR, a leader or a member of the DPR, a leader or a member of the DPD, a governor, a vice governor, a regent, a vice regent, a mayor, or a vice mayor.”

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

Translation uploaded on 11/3/2022 10:39 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.


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