Kutai Kartanegara Regent Challenges Regional Election Law

Legal counsel Muhammad Nursal at the judicial review hearing of Law No. 10 of 2016 on Regional Elections, Monday (1/16/2022). Photo by MKRI/Bayu.

Monday, January 16, 2023 | 16:11 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing of the judicial review 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) on Monday, January 16, 2023. The petition No. 2/PUU-XXI/2023 was filed by Kutai Kartanegara regent of 2021-2026 Edi Damansyah.

He challenges Article 7 paragraph (2) letter n of the Pilkada Law, which reads, “has never served as a Governor, Vice Governor, Regent, Vice Regent, Mayor, and Vice Mayor for 2 (two) terms of office in the same position for candidates of Governor, Vice Governor, Regent, Vice Regent, Mayor, and Vice Mayor.” The Petitioner has in fact “served” as acting regent of Kutai Kartanegara in 2016-2021, then as definitive regent in 2016-2021, and then in 2021-2024 period after a direct election.

Legal counsel Muhammad Nursal said virtually at the hearing chaired by Constitutional Justice Arief Hidayat that the constitutional right to equal opportunity in the government was impaired by the ambiguity of Article 7 paragraph (2) letter n of the Pilkada Law, which the Petitioner believes could lead to discrimination due to different interpretation.

“The Petitioner was harmed by the enactment of the phrase “has served” in the a quo law and in the consideration of Decision No. 2 of 2009, [which] the Petitioner believes to be biased, vague, unclear, and has multiple interpretations because it can be interpreted by governors [and] definitive regents as acting officials,” he explained. He said the Petitioner would not have equal opportunity in government if the restriction was not extended to definitive heads of regions.

Tenure of Heads of Regions

In the petition, the Petitioner argued that Article 7 paragraph (2) letter n of the Pilkada Law could be interpreted that the Petitioner has served as a regent two consecutive terms from 2016 to 2021 and from 2021-2026. Based on the Pilkada Law, it can be interpreted that the Petitioner has served one term in 2016-2021 because he served for more than 2.5 years as an acting regent and as a definitive regent (2 years, 10 months, 12 days). He has also served a second term in 2021-2026.

He believes that the limit of tenure for heads of regions as stipulated in Article 7 paragraph (2) letter n of the Pilkada Law is an instrument in creating a democracy that serves to realize the objective of direct elections and replacement of government officials and to prevent the accumulation of power in certain groups, which could lead to a corrupt government. It also serves to realize the goal of the Republic (Article 1 paragraph (1) of the 1945 Constitution) to promote public interest and welfare. As such, the filling of “democratic” government positions as well as elections by the people, which requires the replacement of government elites, are the antithesis of a monarchy, which is based on inheritance.

“In relation to the Petitioner’s petition for this case, Article 7 paragraph (2) letter n of Law No. 10 of 2016 on the restriction of tenure of a head of region up to 2 terms [that] only applies to definitive heads of regions [and] not to acting heads of regions, does it deviate or contradict the democratic principles and objectives of elections by the people? In reality, this is not the case, because the restriction applies and can be implemented, even if only to definitive positions,” Nursal said.

The Petitioner argued that a vice regent who is then appointed acting regent, then definitive regent, will still be able to meet the two-term requirement as referred to in the a quo article, as long as their tenure extends for 2.5 years or more. In such a circumstance, they will not serve in their positions for life nor will the government be based on inheritance, because acting head of region can be restricted when running for vice head of region.

Based on these reasons, the Petitioner requested that the Court grant the petition and declare Article 7 paragraph (2) letter n of the Pilkada Law unconstitutional and not legally binding if the word “has served” applies only to those serving as definitive regents and not includes acting regents.

Justices’ Advice

In response, Constitutional Justice Saldi advised the Petitioner to explain the differences between a head of region and an acting head of region. “Are [they] the same? Please explain whether they are the same. Explain other terms such as acting officials and so on. If you don’t do so, it will be difficult for us to see the conflict with the Constitution,” he said.

He also asked the Petitioner to simplify the petition. “The most important thing is that we can understand what you wish for, so there is no need to describe it too long,” he added.

Constitutional Justice Arief Hidayat expressed the same sentiment. The petition could be simplified because the problem was clear, he said.

Before concluding the session, Justice Arief informed the Petitioner that he had 14 workdays to revise the petition, which he must submit to the Registrar’s Office by Monday, January 30, 2023 at 13:30 WIB.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/17/2023 15:27 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.

Monday, January 16, 2023 | 16:11 WIB 202