The Petitioner and their legal counsels at the ruling hearing of the judicial review of Law No. 7 of 2017 on General Elections for case No. 12/PUU-XXI/2023, Tuesday (2/28/2023). Photo by MKRI/Ifa.
Tuesday, February 28, 2023 | 20:55 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) granted part of the judicial review petition of Law No. 7 of 2017 on General Elections by the Association for Elections and Democracy (Perludem). The ruling hearing for Decision No. 12/PUU-XXI/2023 took place on Tuesday, January 28, 2023 in the plenary courtroom.
“[The Court] grants the Petitioner’s petition in part,” said Chief Justice Anwar Usman at the ruling hearing alongside the other eight constitutional justices.
The Court declared Article 182 letter g of the Election Law unconstitutional and not legally binding conditionally if not interpreted “Individuals, as mentioned in Article 181, are eligible to contest in the election of members of the DPD if they fulfill the following requirements: …g. (i) 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; (ii) for ex-convicts, 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 and are open and honest of their status as a former convict; and (iii) are not repeat offenders.”
In the legal considerations read out by Constitutional Justices Wahiduddin Adams and Saldi Isra, the Court asserted that one of the requirements for Regional Representatives Council (DPD) candidates as per Article 182 letter g of the Election Law, allowed for ex-convicts to run for DPD before meeting the requirement as referred to in Decisions No. 56/PUUXVII/2019 and No. 87/PUU-XX/2022. As such, it was not in line with those decisions while regional heads, DPR (House of Representatives) members, DPRD (Regional Legislative Council), and DPD members are elected officials. Such discrimination has led to inconsistency and disharmony in the implementation of those norms on the legal subjects that are elected through an election. Therefore, this discrimination could lead to the violation of the citizens’ constitutional rights as guaranteed in Article 28D paragraph (1) of the 1945 Constitution.
Therefore, the Court believes Article 182 letter g of the Election Law must be harmonized and the five-year waiting period must apply to DPD candidates aside from other cumulative requirements in Article 7 paragraph (2) letter g of Law No. 10 of 2016 and Article 240 paragraph (1) letter g of Law No. 7 of 2017.
“The Court observed that Article 182 letter g of Law No. 7 of 2017, which regulates ex-convicts running for DPD, has been proven to have constitutionality issue and is not in line with the spirit in Article 7 paragraph (2) letter g of Law No. 10 of 2016 as interpreted in Constitutional Court Decision No. 56/PUUXVII/2019 and Article 240 paragraph (1) letter g of Law No. 7 of 2017 as interpreted in Constitutional Court Decision No. 87/PUU-XX/2022,” Justice Saldi stressed.
Also read:
Petitioner Requests Stricter Requirements for Ex-Convict MP Candidates
Perludem Affirms Legal Standing in Case on Requirements for Ex-Convict MP Candidates
The petition No. 12/PUU-XXI/2023 was filed by the Association for Elections and Democracy (Perludem). At the preliminary hearing on Monday, February 6, 2023, the Petitioner conveyed their challenge against 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.”
Legal counsel Fadli Ramadhanil asserted that the Petitioner believed the article to be in violation of Article 1 paragraphs (2) and (3), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. He also explained that the election process has not been entirely free from corrupt practices. Data by the Corruption Eradication Commission (KPK), for example that in 2018, showed that many political officials or officials elected or appointed through election or the highest were involved in corruption cases. “One of the reasons […] is the high cost of politics,” he said.
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.
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.”
Author : Utami Argawati
Editor : Nur R.
PR : Raisa Ayuditha
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/1/2023 11:39 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.
Tuesday, February 28, 2023 | 20:55 WIB 364