The Petitioner’s legal counsel Muhammad Nursal at the judicial review hearing of Law No. 10 of 2016 on Regional Elections, Monday (1/30/2022). Photo by MKRI/Bayu.
Monday, January 30, 2023 | 16:16 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held the petition revision 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 30, 2023.
The Petitioner 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 “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.
Before Constitutional Justices Arief Hidayat (panel chair), Saldi Isra, and Daniel Yusmic P. Foekh, legal counsel Muhammad Nursal virtually conveyed the revisions to the petition following the justices’ advice at the previous hearing.
“First, we removed any mention of decisions related to [this case]. We only mention two decisions. Then, the touchstones, initially five articles, are now only three,” he explained.
He added that the comparative table of decisions relating to the article being petitioned had been removed. The subject matter of the petition was simplified.
“Therefore, in the references that we quoted, the term ‘official’ is frequently discussed. We quoted Harun Alrasyid’s view on the theoretical approach, that an official is a generic term that may be, first, a permanent official, second, an interim official who fills in a temporary position, and third, an acting official who fills in a vacant position,” he explained.
Also read: Kutai Kartanegara Regent Challenges Regional Election Law
The petition No. 2/PUU-XXI/2023 was filed by Kutai Kartanegara regent of 2021-2026 Edi Damansyah. At the preliminary hearing on Monday, January 16, 2023, the Petitioner’s legal counsel Muhammad Nursal said 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 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.
“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.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 1/30/2023 17:11 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.