The judicial review hearing of the Election Law to examine petition by the Nusantara Awakening Party (PKN), Wednesday (2/15/2023). Photo by MKRI/Ilham W. M.
Wednesday, February 15, 2023 | 19:00 WIB
JAKARTA (MKRI) — The Nusantara Awakening Party (PKN) challenged the discrimination against political parties who nominate presidential tickets at judicial review hearing of Law No. 7 of 2017 on General Elections. The preliminary hearing for case No. 16/PUU-XXI/2023 took place at the Constitutional Court’s (MK) plenary courtroom on Wednesday, February 15, 2023.
The party challenges Article 222 of the Election Law, which reads, “A presidential candidate ticket shall be nominated by a political party (or a coalition thereof) contesting in an election that has managed to win at least 20% (twenty percent) of DPR seats or 25% (twenty-five percent) of national valid votes in the previous election of members of the DPR.” They argued the article violates Article 6A paragraph (2), Article 22E paragraph (1), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution.
Legal counsel Rio Ramabaskara said contesting political parties must be interpreted differently in each election although the majority of them participate frequently, meaning that all of them, frequent participant and new ones, must register come election. Consequently, any party failing to register cannot join the election despite having representatives in parliament in the previous term.
He revealed that in 2019, 14 national political parties and local parties—Aceh Party, SIRA Party, Aceh Regional Party, and Nangroe Aceh Party—were certified by the KPU (General Elections Commission)
Another legal counsel, Eko Prabowo, said that based on the KPU Decision No. 518 of 2022, 17 parties will contest in the 2024 Election, as well as Ummat Party and several local Aceh parties. Thus, the contestants in 2019 and 2024 Election differ. In practice, he said, contesting parties in elections, despite not being the same year by year, must go through stages that have been set. This, the Petitioner alleged, led to ambiguity when the simultaneous election requires participation in the previous election, especially to nominate presidential tickets.
“Participation in each election starts with registration with the KPU. Any party failing to register cannot follow the election process despite having seats and votes. So, all political parties must go through the same mechanism, registration, verification, and certification to become contesting political parties,” Eko explained.
The Petitioner believes, with the decision for simultaneous legislative and presidential election, it would be odd to require the registration of presidential tickets based on voters data of a previous election, when the voting process is based on voters data for the current election. This would show inconsistency, especially as voters data is an essential element in elections.
The simultaneity of election, the Petitioner argued, must follow Article 6A paragraph of the 1945 Constitution, which authorized contesting parties to nominate presidential tickets without any additional requirements, while Article 222 of the Election Law regulates requirements for presidential threshold based on seats or valid votes, which the Court believes to be an open legal policy. Therefore, the provision must not eliminate the constitutional rights of other contesting political parties who cannot choose between seats and valid votes.
As such, there is a legal vacuum that led to the elimination of the constitutional rights of a certain contesting political parties, such as the Petitioner, the Gelora Party, the Labor Party, and the Ummat Party in 2024 Election, who cannot use both seats and valid votes for the nomination. Meanwhile, the other 14 can nominate presidential tickets based on seats or valid votes.
With the Constitutional Court Decisions No. 14/PUU-X12013 and 55/PUU-XVII/2019, simultaneous elections cannot eliminate the constitutional rights of all contesting political parties, but instead must provide guarantee of legal certainty and justice to all those parties. Those decision must also provide constitutional guarantee that no right of contesting political parties can be eliminated due to the chosen simultaneity.
In the petitum, the Petitioner requested that the Court declare Article 222 of the Election Law in violation of Article 6A paragraph (2), Article 22E paragraph (1), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution conditionally if not interpreted as “Political parties certified by the General Elections Commission (KPU) as an Election Participant in the election period that have not had seats and national valid votes from the previous election shall be declared able to nominate presidential and vice presidential candidates, either by itself or as a coalition of political parties, without requirements as referred to in this provision.”
Legal counsel Dian Farizka added that the Petitioner requested that the Court “declare the Petitioner, either by itself or as a coalition of political parties, to have the right to nominate, propose, and register presidential and vice-presidential candidates for the 2024 Election to the General Elections Commission.”
Justices’ Advice
Constitutional Justice Wahiduddin Adams advised the Petitioner to elaborate the Petitioner’s direct relation to the presidential threshold issue and strengthen their legal standing. “The touchstones must be reviewed. The petitum requires emphasis whether the Petitioner request a verdict of ‘conditionally constitutional.’ If so, which phrase in the norm would like to be declared as such. This petition [requests] additional phrase, meaning the creation of a new norm,” he said.
Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to follow the format of the petition in Constitutional Court Regulation (PMK) No. 2 of 2021 relating to the Petitioner’s profile, the Court’s jurisdiction, until the petitum. He also advised that the petition focus on the article being petitioned.
Next, Constitutional Justice Saldi Isra (panel chair) asked the Petitioner to detail the party’s chairman and secretary-general who can represent the party in legal cases based on the party’s statute/bylaw. He also advised them to elaborate potential and factual violations of constitutional rights they suffer due to the enactment of the norm.
“Similar petitions have been filed to the Court. Prove that the petition is [not] ne bis in idem so that you can enter the subject of the petition. Make the argument for the new parties. This explanation must be contrasted with the norm,” he explained.
Before adjourning the session, Justice Saldi announced that the revised petition must be received by the Registrar’s Office by Tuesday, February 28 at 13:30 WIB. The schedule for the next hearing, he said, would be announced at a later date.
Writer : Sri Pujianti
Editor : Nur R.
PR : Raisa Ayuditha
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/16/2023 11:37 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.
Wednesday, February 15, 2023 | 19:00 WIB 433