Petitioner Requests Stricter Requirements for Ex-Convict MP Candidates

The preliminary judicial review hearing of Law No. 7 of 2017 on General Elections, Monday (2/6/2023). Photo by MKRI/Bayu.

Monday, February 6, 2023 | 12:43 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of Law No. 7 of 2017 on General Elections on Monday, February 6, 2023. The petition No. 12/PUU-XXI/2023 was filed by the Association for Elections and Democracy (Perludem).

The Petitioner challenges Article 182 letter g of the Election Law, which reads, “Individuals, as mentioned in Article 181, is eligible to contest in the election of members of the DPD if they fulfill the following requirements: g. the 17 August 1945 Proclamation of Independence; g. having not been criminally punished by a verdict of a court with a fixed legal power due to committing a criminal act punished by incarceration of 5 (five) or more years, unless the individual openly and honestly announces to the public that they have served their time as a convict.”

On site from the plenary courtroom, the Petitioner through legal counsel Fadli Ramadhanil asserted that said norm was against Article 1 paragraphs (2) and (3), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. Fadli then explained the background of the petition.

“The bases of our argument in explaining and elaborating this petition are four things: [first,] political contest and massive money politics. We all know that since the amendment to the 1945 Constitution, we agree that the election must be implemented democratically in a direct, public, free, confidential, honest, and fair manner. However, in its development, the election process has not been entirely free from corrupt practices. Data by the [Corruption Eradication Commission/KPK], for example in 2018, [showed] that [many] political officials or officials elected appointed through election or the highest politic[al process] were involved in corruption cases. One of the reasons […] is the high cost of politics,” he explained before Constitutional Justices Saldi Isra (panel chair), Wahiduddin Adams, and Suhartoyo.

Therefore, Fadli added, in such a circumstance, a legal framework that gives opportunities to electoral candidates with integrity and that allows good election management to lead to democracy and sustainable development are necessary.

“The next argument is the importance of requirements for candidates of [Regional Representatives Council/DPD] members and their vulnerability to corrupt practices. We know that DPD members are elected through election directly by the people and institutionally by DPD members, who have a highly strategic authority as regulated by Article 22D of the 1945 Constitution, especially on supervision, legislation that is closely related to the central and regional [governments]. In addition, the election process or political officials elected through election expects public trust and the trust will be earned when those elected through a democratic election process are people with good track record and integrity,” he said.

Requirements for Ex-Convicts to Run for Election

Fadli revealed that the Constitutional Court had handed down a decision promoting stricter requirements for electoral candidates, i.e. Decision No. 56/PUU-XVII/2019 on the requirements for ex-convicts in the regional election and Decision No. 87/PUU-XX/2022 on the requirements for ex-convicts in the legislative election.

Meanwhile the requirements for ex-convict DPD member candidates are not the same as those for ex-convict candidates for regional elections as well as elections for House of Representatives (DPR) and Regional Legislative Council (DPRD), despite them similarly being elected directly by the people.

In addition, he said, ex-convict DPD member candidates are required to openly and honestly reveal their previous conviction to the public but not barred for five years to run for election, despite this waiting period being highly important to allow them to adapt to society. “This waiting period is an important deterrent for political officials who are elected through election so that they will be careful not to practice corruption over the position,” he explained.

Therefore, in the provisional petitum, the Petitioner requested that the Court prioritize the examination of the petition to provide certainty so that the restrictions not apply to current DPD member candidates since the election candidacy has started since December 6, 2022.

The Petitioner also requested that the Court declare Article 182 letter g of the Election Law unconstitutional and not legally binding as long as it is not interpreted “having not been criminally punished by a verdict of a court with a fixed legal power due to committing a criminal act punished by incarceration of 5 (five) or more years, except for a criminal act of negligence and a political criminal act in the sense that the act was declared a criminal act in the positive law only because the perpetrator had a different political view from the regime in power; having not been subjected to an additional punishment of revocation of the right to vote by a verdict of a court with a fixed legal power; having passed 5 (five) years after they have served their time as a convict vote by a verdict of a court with a fixed legal power; is open and honest of their status as a former convict; and is not a repeat offender.” 

Justices’ Advice

In response, Constitutional Justice Wahiduddin Adams asked the Petitioner to explain their actual and potential impairment within advocacy, especially relating to the DPD.

“Also [explain] whether there are candidates who are former convicts. [The argument] would be stronger if such information is provided,” he said.

Meanwhile, Constitutional Justice Suhartoyo requested that the Petitioner explain the difference between their petition and those in cases No. 56/PUU-XVII/2019 and 87/PUU-XX/2022.

“[You] have a provisional petition. The registration stages have been in motion. Can the decision [on this case] apply for that?” he asked.

Before adjourning the session, Constitutional Justice Saldi Isra announced that the Petitioner had 14 workdays to revise the petition and should submit it to the Registrar’s Office by Monday, February 20, 2023 at 10:00 WIB.

Writer        : Sri Pujianti
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 2/8/2023 14:01 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, February 06, 2023 | 12:43 WIB 214