Petitioner Viktor Santoso Tandiasa reading out the subject matter at the preliminary hearing of the material judicial review of Law No. 7 of 2017 on General Elections, Thursday (4/6/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The phrase “other disturbances” on the provisions of the requirements for delaying the election in Law No. 7 of 2017 on General Elections was challenged. Viktor Santoso Tandiasa filed a petition of the Law due to the Central Jakarta District Court Decision No. 757/Pdt.G/2022/PN_Jkt.Pst petitioned by the Just and Prosperous People's (Prima) Party. The decision penalized the KPU (General Elections Commission) for not implementing the remainder stages of the 2024 Election and ordered it to start over within two years four months and seven days since the decision was pronounced.
The statement was made by Tandiasa at a preliminary hearing on Thursday, April 6, 2023 in the plenary courtroom. In petition No. 32/PUU-XXI/2023, he argues that the concrete case correlated to the phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of the Election Law, which he believes is subject to multiple interpretations.
Article 431 paragraph (1) reads, “In the case where Indonesia is partially or wholly struck by a riot, security risks, natural disasters, or other disturbances causing a number of electoral stages unable to commence, a postponed election shall be held.” Meanwhile, Article 432 paragraph (1) reads, “In the case where Indonesia is partially or wholly struck by a riot, security risks, natural disasters, or other disturbances causing all electoral stages unable to commence, a late election shall be held.”
Before Constitutional Justices Arief Hidayat (panel chair), M. Guntur Hamzah, and Enny Nurbaningsih, Tandiasa argued that the phrase “other disturbances” was vague and subject to multiple and broad interpretations since many conditions could meet the requirement for the delay of election, such as the Central Jakarta District Court Decision No. 757 of 2022.
“An actual fact that could be categorized into ‘other disturbances’ in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 is the [Central Jakarta] District Court Decision No. 757 of 2022, whose point 5 of the verdict penalized the Respondent (KPU) for not implementing the remainder stages of the 2024 Election since the decision was pronounced and [ordered it] to start over within two years four months and seven days. Meanwhile, in point 6 of the verdict, [the district court] declared the decision could be implemented first immediately (uitvoerbaar bij voorraad),” he explained.
He asserted that if the ruling was not implemented by the KPU, some parts of the election would be legally flawed. In addition, the KPU continued with the election stages after the verdict, although it is being appealed.
Tandiasa stressed that the principle res judicata pro veritate habetuur dictates that decisions must be deemed as valid and can be implemented (uitvoerbaar bij voorraad) until they are corrected or annulled by a higher court in casu appeal and cassation up to judicial review.
“Referring to the principles res judicata pro veritate habetuur and uitvoerbaar bij voorraad, ideally the KPU must implement the [Central Jakarta] District Court Decision No. 757 of 2022 while taking the next legal step, which is appeal, cassation, judicial review until the decision is inkracht since the binding force of a decision can only be annulled by a similar product, which is another decision. However, it must be understood that appeal, cassation, up to judicial review takes a long time while a mere day delay of the election could potentially hinder the election in several or all regions,” Tandiasa explained.
Meanwhile, if the KPU insists on continuing the election, he added, it would be subject to criminal punishment. For example, another litigant could sue it to the State Administrative Court for having committed an unlawful act (onrechtmatige overheidsdaad) in casu not implementing the district court decision. Tandiasa said that this means the KPU would have a weak position in the implementation of the election, which could be a basis for a late election or a postponed election, as it is deemed to be in the category of “other disturbances.”
Based on those explanations, Tandiasa argued that that the phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 was in violation of Article 1 paragraph (3), Article 22E paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. Thus, in his petitum, he requests that the Court declare the phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of the Election Law unconstitutional and not legally binding.
Justices’ Advice
Constitutional Justice M. Guntur Hamzah said that technically the petition was complete, but he advised that the Petitioner’s legal standing as an individual citizen with voting rights must be elaborated in relation to the phrase “other disturbances.”
“Elaborate [the legal standing] in relation to the phrase ‘other disturbances’…. What is the correlation between your voting rights and the phrase ‘other disturbances’ which, in your petitum, you believe to have multiple interpretation or, in constitutional terms, not having legal certainty. Please elaborate this, for example if this happens as you previously explained, your voting rights would be restricted,” he advised.
Meanwhile, Constitutional Justice Enny Nurbaningsih requested that the Petitioner elaborate the background of the election. She believed laws cannot dictate interpretation entirely, since there could be events such as the COVID-19 pandemic. Not to mention, Article 432 paragraph (2) of the Election Law has dictated the percentage for a late or postponed election.
“It means that this has been implemented but there is a percentage that restricted the implementation, possibly due to factors in Article 432 paragraphs (1) and (2). However, the Election Law has stipulated when a late or postponed election shall be implemented,” she said.
Before adjourning the session, Constitutional Justice Arief Hidayat informed the Petitioner that he had 14 workdays to revise the petition and to submit it to the Registrar’s Office by Wednesday, April 26, 2023 at 10:00 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
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.
Thursday, April 06, 2023 | 12:38 WIB 101