The ruling hearing of the judicial review of Law No. 7 of 2017 on General Elections, Tuesday (1/31/2023). Photo by MKRI/Ifa.
Tuesday, January 31, 2023 | 21:28 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 on General Elections, filed by the Berkarya Party. The hearing for Decision No. 117/PUU-XX/2022 took place on Tuesday, January 31, 2023 in the plenary courtroom.
“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman reading out the verdict alongside the other eight constitutional justices.
In its legal considerations read out by Constitutional Justice Saldi Isra, the Court asserted that it must clarify whether the provisions on the presidential election requirements in Article 169 letter n and Article 227 letter i of the Election Law had failed to provide fair legal certainty as guaranteed by Article 22E paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.
As such, the Court’s legal considerations would be based on the provisions of the 1945 Constitution, especially Article 7, as well as Article 6 in casu Article 6 paragraph (2), as the petitioned articles are also closely related to provisions on the requirements to become presidential ticket candidates. Those norms are the result of amendments to the 1945 Constitution by the People’s Consultative Assembly (MPR) in 1999-2002, whose main objective was, among other things, to perfect the basic rules on guarantees for the implementation of people’s sovereignty and to increase people’s participation so that it is in line with the development of democracy. The amenders of the Constitution chose presidential democracy for government system.
“The provision of Article 7 is one of the norms in the 1945 Constitution that was amended for the first time in the 1999 constitutional reform. As is well known, prior to the amendment, Article 7 of the 1945 Constitution read, ‘The President and Vice President shall hold office for five years, and after that can be reelected.” Normatively, Article 7 of the 1945 Constitution prior to the amendment did not regulate the number of terms a person could become a president or vice president. In fact, the phrase ‘after being reelected’ gives an opportunity for someone to become a president or vice president without clear term restrictions. In the history of Indonesian constitutionalism, it was this flexible formulation of Article 7 of the 1945 Constitution that was used as the basis or argument for appointing a president without a term limit during the Old Order and New Order. After the amendment, the norm of Article 7 of the 1945 Constitution reads, ‘The President and Vice President shall hold office for five years, and after that they can be reelected for the same position, only for one term of office,’” Justice Saldi Isra said.
Furthermore, the Court asserted that although Article 7 was successfully changed in the first amendment in 1999, the constitutional dynamics at the beginning of the Reform era showed that it had been amended before that. Since this created a loophole for the New Order regime to exploit the article to allow Suharto to hold office for more than 32 years, the MPR in a special session in 1998 agreed to limit the president’s tenure in MPR Decree No. XIII/MPR/1998 on Restrictions on the Term of Office of the President and Vice President. Letter c of the “considering” part of the decree reads, “in the course of the constitutional administration of the Republic of Indonesia, there is no limit to the number of times the President and Vice President can be reelected, which has led to various interpretations that are detrimental to people’s sovereignty/democratic life.” Therefore, the MPR members agreed to change the substance of Article 7 of the 1945 Constitution, without waiting for amendment to the 1945 Constitution, in accordance with Article 37 of the 1945 Constitution to become: “The President and Vice President shall hold office for five years, and after that they can be reelected for the same position, only for one term of office” [vide Article 1 Decree of the MPR No. XIII/MPR/1998].
When an agreement was reached to amend the 1945 Constitution, the MPR adopted the MPR Decree No. XIII/MPR/1998 in the first amendment in 1999. One of the reasons is that provisions under the Constitution were considered inadequate for very basic matters such as limiting the term of office of the president and vice president. The “slight difference” between Article 1 of the MPR Decree and Article 7 of the 1945 Constitution as a result of the amendment to the president’s and vice president’s term to no more than two. In fact, whether the restriction would be imposed on consecutive or non-consecutive terms was discussed [vide Comprehensive Text of the 1945 Constitution Book IV, Volume 1, p. 477]. In fact, in a presidential democracy, two consecutive terms is intended as the maximum limit for someone a president and vice president.
“Because Article 7 of the 1945 Constitution has provided clear limitation on the term of office and period of the term of office of the president or vice president, normatively other regulations are needed in the Constitution and followed up in statutory regulations under the Constitution to support it in filling the vacancy of president and vice president, especially with regard to the requirements,” Justice Saldi said.
Requirement for Presidential Ticket Candidates
The requirements for president and vice president, Justice Saldi added, are constitutionally regulated in Article 6 of the 1945 Constitution, especially paragraph (1), which reads, “The prospective President and the prospective Vice President shall be Indonesian nationals since their birth and never accept another nationality at their own initiative, never betray the state, and be able to physically and spiritually implement the tasks and obligations as the President and Vice President.” Since constitutional norms cannot regulate these requirements in detail, Article 6 paragraph (2) of the 1945 Constitution further stipulates, “The requirements for becoming President and Vice President are stipulated by virtue of law.”
Justice Saldi asserted that the requirement for presidential ticket candidates as stipulated in Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 i.e. never having served in the same position for two terms either consecutively or not consecutively, with a statement to declare as such, affirms Article 7 of the 1945 Constitution, even if the term is less than five years. It serves as a guideline for general election organizers in assessing the fulfillment of the requirements in order to maintain consistency and avoid the violation of Article 7 of the 1945 Constitution.
The Court asserted that it had found that Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 had not raised any issue of legal uncertainty, which is guaranteed by Article 28D paragraph (1) of the 1945 Constitution, and declared the Petitioner’s argument in its entirety legally unreasonable.
Not Participant of 2024 Election
However, Constitutional Justice Daniel Yusmic P. Foekh had a dissenting opinion. He asserted that the Petitioner was not a political party participating in the 2024 Election and could not prove that they were forming a coalition or joining other political parties to nominate presidential ticket candidates in the 2024 Election. These legal facts further emphasized the absence of loss and causality between the Petitioner’s impairment and the enactment of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017, so there was no constitutional right to be restored.
“I believe the enactment of Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 in no way harmed the Petitioner’s constitutional rights, thus, the Petitioner had no legal standing in the a quo case and the Court should declare the Petitioner’s petition inadmissible (niet ontvankelijke verklaard),” Justice Foekh stated.
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The petition No. 117/PUU-XX/2022 against Article 169 letter n and Article 227 letter i of the Election Law was filed by the central executive board (DPP) of the Berkarya Party, represented by chairman Muchdi Purwopranjono and secretary-general Fauzan Rachmansyah.
At the preliminary hearing on Thursday, December 15, 2022, the Petitioner through legal counsel M. Malik Ibrahim asserted that Article 169 letter n and Article 227 letter i of the Election Law had restricted or reduced their constitutional right to nominate presidential and vice-presidential candidates 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.
They believed Article 7 of the 1945 Constitution was 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 could 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.
Therefore, if any incumbent president or vice president who is seeking reelection or is being nominated invites another candidate to run for office, they would not be bound by Article 7 of the 1945 Constitution, since it stipulates that reelection can be possible for an incumbent president or vice president with a new candidate. Therefore, In the petitum, the Petitioner requested that the Constitutional Court declare Article 169 letter n and Article 227 letter i of the Election Law unconstitutional and not legally binding.
Writer : Utami Argawati
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/6/2023 13:28 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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