The Petitioner’s legal counsels Muhammad Nursal and La Said Sabiq at the ruling hearing of the judicial review of Law No. 10 of 2016 on Regional Elections, Tuesday (2/28/2023). Photo by MKRI/Ifa.
Tuesday, February 28, 2023 | 20:34 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) felt the need to emphasize that there is no difference between the tenure of a definitive regional head or an interim one that has gone on for half the period, unlike what the Petitioner alleged, the Court asserted in its legal considerations for Decision No. 2/PUU-XXI/2023 filed by Kutai Kartanegara regent of 2021-2026 Edi Damansyah. The verdict was read out at a ruling hearing on Tuesday, January 28, 2023 in the plenary courtroom.
The Petitioner challenged Article 7 paragraph (2) letter n of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law). He argued that he had lost the constitutional right to equal opportunity in the government due to the ambiguity of Article 7 paragraph (2) letter n of the Pilkada Law, which he believed could lead to discrimination due to different interpretation.
Justice Arief said that in Decision No. 22/PUU-VII/2009 pronounced on November 17, 2009, the Court had declared “a term of office that is counted toward a period is one that has been had halfway or more, which was reinforced in the legal considerations for Decision No. 67/PUU-XVIII/2020, in which the Court stated “… half of the tenure or more is counted toward a period.” This means that when a definitive or interim head of region has served half their term or more, they are said to have served one term.
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“Therefore, based on Decision No. 22/PUU-VII/2009, which was reinforced in the legal considerations for Decision No. 67/PUU-XVIII/2020, the meaning of the [phrase] ‘has served’ in question is clear and there is not need for it to be interpreted differently from what is meant in the decision. Thus, the [phrase] ‘has served’ means the term counted toward one period, which is a term of office that has passed by half or more,” he said.
Based on the legal considerations, the phrase ‘has served’ in the phrase “has never served as a Governor, Vice Governor, Regent, Vice Regent, Mayor, and Vice Mayor for 2 (two) terms of office in the same position for candidates of Governor, Vice Governor, Regent, Vice Regent, Mayor, and Vice Mayor” is not against the recognition, guarantees, protection, and fair legal certainty and equal treatment. In addition, it is not contrary to the principle that every citizen has the right to equal opportunity in government as set out in Article 28D paragraph (3) of the 1945 Constitution and does not conflict with the rights and freedoms of every person to meet just demands in accordance with considerations of morality, religious values, security, and public order in a democratic society as set forth in Article Article 28J paragraph (2) of the 1945 Constitution. Thus, the petition was legally groundless according to law in its entirety.
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The Petitioner argued that Article 7 paragraph (2) letter n of the Pilkada Law could be interpreted that the Petitioner has served as a regent two consecutive terms from 2016 to 2021 and from 2021-2026. Based on the Pilkada Law, it can be interpreted that the Petitioner has served one term in 2016-2021 because he served for more than 2.5 years as an acting regent and as a definitive regent (2 years, 10 months, 12 days). He has also served a second term in 2021-2026. He requested that the restriction of tenure of a head of region up to 2 terms only applies to definitive heads of regions, not to acting heads of regions.
The Petitioner argued that a vice regent who is then appointed acting regent, then definitive regent, will still be able to meet the two-term requirement as referred to in the a quo article, as long as their tenure extends for 2.5 years or more. In such a circumstance, they will not serve in their positions for life nor will the government be based on inheritance, because acting head of region can be restricted when running for vice head of region. Based on these reasons, he requested that the Court grant the petition and declare Article 7 paragraph (2) letter n of the Pilkada Law unconstitutional and not legally binding if the word “has served” applies only to those serving as definitive regents and not to acting regents.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/1/2023 10:24 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.