The legal counsels of the central executive board (DPP) of the Berkarya Party, M. Malik Ibrahim and Rino, conveying the subject matters of the petition on the judicial review of the Election Law, Thursday (12/15/2022). Photo by MKRI/Panji.
Thursday, December 15, 2022 | 14:27 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the judicial review of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 on General Elections on Thursday, December 15, 2022. The petition No. 117/PUU-XX/2022 was filed by the central executive board (DPP) of the Berkarya Party, represented by chairman Muchdi Purwopranjono and secretary-general Fauzan Rachmansyah.
Article 169 letter n of the Election Law 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.”
The elucidation to the article reads, “‘Having not served as a president or vice president for 2 (two) tenures in the same position’ means that the person has never served as a president or a vice president for 2 (two) tenures, either in succession or otherwise, even though one tenure lasts less than the supposed 5 (five) years.”
Article 227 letter i of the Election Law reads, “Registration of a presidential candidate ticket as mentioned in Article 226 shall be supplemented by the following documents: i. a statement letter certifying that the nominated candidates has never served as a president or a vice president for 2 (two) tenures in the same position.”
Legal counsel M. Malik Ibrahim said as a political party, the Petitioner has a constitutional right to nominate presidential and vice-presidential candidates, including the incumbent or a one elected in the previous election. However, Article 169 letter n and Article 227 letter i of the Election Law has restricted or reduced this right by regulating that presidential and vice-presidential candidates must not have served in the same position for two terms, as supplemented by a statement letter.
“The provisions of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 have the same principle, as they regulate the requirement for presidential and vice-presidential candidates to not have served as a president or vice president for two terms and in the same terms,” he said virtually at a panel hearing presided over by Constitutional Justices M. Guntur Hamzah, Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh.
Malik added that Article 7 of the 1945 Constitution mentions the word “and,” which the Great Dictionary of the Indonesian Language defines as “a connecting unit of language (words, phrases, clauses, and sentences) that are equivalent, which belong to the same type and have no different functions.” Thus, it connects a phrase/sentence to the next one. It also contains two commas (,), which the General Guidelines for Indonesian Spelling System defines as a punctuation that, among others, serves to connect appositives. Therefore, it is obvious that every phrase/sentence in Article 7 of the 1945 Constitution are interconnected and cannot be interpreted as otherwise expressed.
President’s Terms
The Petitioner asserted that Article 7 of the 1945 Constitution is divided into two clauses: “The President and Vice President shall hold the position for five years” and “after that they can be re-elected for the same term of office, only for one term of office.” The entire article can be interpreted that a pair of president and vice-president that is holding the office for five years can be reelected for the same positions for only one five-year term.
The five-year term is in line with Article 22E paragraph (1) of the 1945 Constitution, which stipulates that the election takes place every five years. The phrase “can be re-elected” refers to a pair of president and vice-president in the previous clause, i.e. that is holding the office for five years. The phrase “only for one term of office” shows that the election takes place every five years. Therefore, no legal norm in Indonesia regulates any position elected through the election for more than one term, for example for ten years consecutively.
Therefore, any incumbent president or vice president who is seeking reelection or is being nominated invites another person to run for office is not bound by Article 7 of the 1945 Constitution.
He added that the grammatical and systematical interpretations of Article 7 of the 1945 Constitution in connection to Article 169 letter n and Article 227 letter i of the Election Law, show that the limitation of two terms only bounds the same elected president and vice president based on a previous election who are sitting in office. One half of the pair can seek reelection for the same position for only one more term (five years). Therefore, it is clear that, according to Article 7 of the 1945 Constitution, the pair of president and vice-president in question can only be reelected for the same position one more time, so they can only hold a position for two terms (ten years).
“It is clear that the provisions of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 are different from and in violation of Article 7 of the 1945 Constitution, that is, the provision ‘has never served as a president or a vice president for 2 (two) tenures in the same position’ is far different from the meaning enshrined in Article 7 of the 1945 Constitution,” he added.
Malik emphasized that it would be different if Article 7 of the 1945 Constitution stipulated that the president and vice president took office for five years and can be reelected for the same position only once or that no one can be elected as president and vice president for more than two terms. Then it would make Article 169 letter n and Article 227 letter i of the Election Law in line with and not violating the 1945 Constitution, the supreme law.
Article 169 letter n and Article 227 letter i of the Election Law should be declared unconstitutional since Article 7 of the 1945 Constitution is clear and does not need any interpretation in a law (in casu the Election Law) as interpretatio cessat in claris atau a plain meaning rule, meaning that interpretation ceases when a text is clear.
In the petitum, the Petitioner requested that the Constitutional Court declare 169 letter n and Article 227 letter i of the Election Law unconstitutional and not legally binding.
Justices’ Advice
Manahan M. P. Sitompul advised the Petitioner to include the Constitutional Court Regulation No. 2 of 2021. “Aside from the 1945 Constitution, the Judicial Law, the Lawmaking Law, and the Constitutional Court Law are included. Last, the Constitutional Court Regulation is mentioned because you can see Article 10, and Article 11 if necessary, in order to understand the better format of a petition,” he explained.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh requested that the Petitioner strengthen their legal standing by elaborating whether the Berkarya Party is a political party contesting in the election. Legal standing, he added, would be the entry point of the reasons behind the petition (posita).
Next, Constitutional Justice M. Guntur Hamzah said the Petitioner had elaborated and concluded the norms in depth. However, he highlighted the connection between the norms being challenged and the Petitioner’s constitutional impairment. “What constitutional rights you feel have been impaired by the norms, which you believe contradict the touchstone? This needs elaboration so that the justices will understand the factual or potential impairment suffered,” he said.
He also said that the Petitioner put too much emphasis on grammatical and systematical interpretation. He asserted that philosophical and conceptual interpretation is required, and the original intent of the articles in question needs to be discussed.
Before concluding the session, Justice Guntur informed the Petitioner that they have until Wednesday, December 28, 2022 at 10:00 WIB to submit the revised petition.
Writer : Utami Argawati
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/20/2022 10:38 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, December 15, 2022 | 14:27 WIB 413