Eliadi Hulu conveying the arguments in his petition at the preliminary hearing of the judicial review of the Village Law, Wednesday (2/15/2023). Photo by MKRI/Panji.
Wednesday, February 15, 2023 | 16:12 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of Article 39 paragraphs (1) and (2) of Law No. 6 of 2014 on Villages on Wednesday, February 15, 2023. The petition No. Nomor 15/PUU-XXI/2023 was filed by Eliadi Hulu, a resident of Ononamolo Tumula Village, Alasa Subdistrict, North Nias Regency.
Article 39 paragraph (1) reads, “The head of the village shall hold the position for six (6) years from the date of appointment.”
Article 39 paragraph (2) reads, “The head of the village as referred to in paragraph (1) may serve for three (3) terms at most, either consecutively or non-consecutively.”
The hearing was presided over by Constitutional Justices Daniel Yusmic P. Foekh (panel chair), Enny Nurbaningsih, and Arief Hidayat. The Petitioner said in the courtroom that the enactment of Article 39 of the Village Law, which grant village heads a tenure of 6 years per term, had caused him constitutional impairment.
“If [I] want to run as a village head, [I] will have to wait for six years. If the village head elected in [my] village does not show good leadership and management nor are they competent or capable in the six-year tenure, which hinders the development and advancement of villages, or lead to hardships among the villagers, I will have to wait for six years until the vacancy opens,” he said.
Five-Year Tenure
The Petitioner believes that if the village head’s tenure is limited to five years, his village will see a faster turnover for a new village head with better leadership and management, thus, positively impacting the village. One year, he asserted, is ample time to make positive changes. The five-year tenure is based on Article 7 of the 1945 Constitution on the tenure of president and vice president, to which all tenures of executive positions in the central and regional governments refer, thus creating justice and harmonious administration.
Manifestation of Democracy
The Petitioner argued that the tenure regulation in Article 39 of the Village Law would lead to regression of democracy in the village. Villagers, he said, democracy manifests in elections. He argued that a better provision would encourage villagers to keep participating actively in village activities as they have a sense of belonging to the village election.
If the elections are too far apart, the villagers’ enthusiasm in democracy would diminish. Not to mention, if village heads are given the opportunity to stay in power for three terms. The community, he said, would think, “Why participating in election if the winner is always the same candidate.” There is an assumption that a village head seeking reelection for the second time and if the village officials are those loyal to the village head in question, there would be unfair elections.
The restriction to the village head tenure must be adjusted to the 1945 Constitution, which is 5 years, with a one-time reelection, he reasoned. This is to follow that of president/vice president, governors, regents/mayors for the sake of justice for all political positions filled through elections.
The two-time five-year tenure is a precedent because private companies and state-owned enterprises (BUMN) have also started to set a five-year tenure for their boards of directors and commissioners.
The Petitioner asserted that the lawmakers did not give explanation of the six-year tenure and two-time reelection. They, he said, did not provide strong arguments.
Limiting Power
The possibility of an 18-year tenure, the Petitioner’s argued, is too long and not in line with constitutional principles of limitation of power and prevention of excessive power or abuse of power. This limitation can only be done through rational tenure regulation following the 1945 Constitution.
This excessive periodization, the Petitioner said, could potentially cause institutional disasters, because it contradicts constitutional principles, proportionality, and has not been prepared on a rational and comprehensive basis. It also disregards about the direction, strengthening, and grand design of village development and progress, which can lead to violations of citizens’ constitutional rights, especially with regard to Article 1 paragraph (3), Article 27 paragraph (1), Article 28B paragraph (2), Article 28D paragraphs (1) and (3), and Article 28I paragraph (2) of the 1945 Constitution.
One form of village heads’ arrogance is the appointment of village officials, who often have political or familial ties with them. For example, in the Petitioner’s village, even though selection and screening had been carried out, the village apparatus was not subject to the selection results. Instead, the candidate in third place was appointed. The candidate placing first wanted to fight for their rights, so along with the village community, they sent a letter of objection to the village head, and even to the regent, but it fell on deaf ears.
The Petitioner believes the Court must act to limit the village heads’ tenure so that it is in accordance with the 1945 Constitution. He also requested that in its considerations, the Court provides an explanation that the tenure of village heads not be lengthened.
Therefore, in his petitum, the Petitioner requested that the Court declare Article 39 paragraph (1) of the Village Law unconstitutional and not legally binding as long as it is not interpreted “The village head shall hold office for 5 (five) years from the date of their inauguration” and “The village head as referred to in paragraph (1) can serve for a maximum of 2 (two) terms, either consecutively or non-consecutively.” consecutively."
Justices’ Advice
In response, Constitutional Justice Arief Hidayat said, “Please elaborate [the constitutional impairment] so the legal standing is clear, using five criteria of constitutional rights granted by the Constitution. [Argue that] the constitutional rights have been violated by the law or article being petitioned. The constitutional impairment must be specific, actual, or potential.”
Meanwhile, Constitutional Justice Enny Nurbaningsih explained that, in general, the petition had followed the Constitutional Court Regulation (PMK), but it must be made more comprehensive.
“Please clarify the subject, which you only mentioned Law No. 6 of 2014. Then, in the part on the Court’s jurisdiction, revise it. Explain that the Constitutional Court’s [jurisdiction] comes from the Constitution, the Judicial Law, the Constitutional Court Law, the Lawmaking Law. Then mention the object petitioned and the touchstones,” she explained.
Before adjourning the session, Constitutional Justice Daniel Yusmic P. Foekh informed the Petitioner that the deadline is Monday, February 27. “The hard- and softcopy of the revised petition should be submitted by 13:30 WIB. The next hearing’s schedule will be announced to the Petitioner by the Registrar’s Office,” he said.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/16/2023 09:58 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 | 16:12 WIB 298