Viktor Santoso Tandiasa (Petitioner) at the ruling hearing of the material judicial review of Law No. 7 of 2017 on General Elections, Thursday (5/25/2023) in the courtroom. Photo by Humas MK/Ifa

---

JAKARTA (MKRI) — The phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 on General Elections is an anticipatory arrangement if there is any event outside of riots, disturbances to security, and natural disasters that disturbs election stages, the Constitutional Court (MK) stated in its legal considerations in Decision No. 32/PUU-XXI/2023 read out by Constitutional Justice Enny Nurbaningsih at the ruling hearing on Thursday, May 25, 2023 in the plenary courtroom.

“Runoff as referred to in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 requires mechanism as agreed so that the election runs according to set stages. The KPU must first determine the delay to the election following the incident warranting delay or leading to the halt of election stages, i.e.: (a) the regency/city KPU by PPK’s proposal if the delay involves only one or several villages, (b) the regency/city KPU by PPK’s proposal if the delay involves only one or several subdistricts, (c) provincial KPU by regency/city KPU’s proposal if the delay involves only one or several regencies/cities, or (d) KPU by provincial KPU’s proposal if the delay involves only one or several provinces [vide Article 433 of Law No. 7 of 2017],” Justice Enny said.

As such, Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 have clearly stipulated the reasons for election delay or halt of election stages. They are not only riots, disturbances to security, and natural disasters and not disturbances that can be politicized or manipulated for certain interests, as the Petitioner feared.

Legislatures’ Anticipatory Measure

The Court also stated that the phrase “other disturbances” in Article 230 paragraph (1) and Article 231 paragraph (1) of Law No. 8 of 2012 or in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 is an anticipatory measure by the legislatures in order to expand unexpected situations that may influence election and warrant a runoff. Such a measure serves to protect the implementation of election, including providing protection over the citizens’ constitutional right to vote and be voted in election.

“Therefore, the Petitioner’s petition that the phrase ‘other disturbances’ in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 be interpreted to mean only ‘non-natural and social disasters,’ in the Court’s opinion, would in fact limit the scope of emergency incident or series of incidents or disturbances that has not been regulated in laws and regulations since their form and time cannot be predicted,” Justice Enny said.

In addition, the Court asserted, it would also be in contrast with the ideal content of laws and regulations that should be able to accommodate future legal needs relating to the protection of the constitutional rights of voters.

“Therefore, a contrario, the addition of the phrase ‘other disturbances’ has made the emergency situation that is prerequisite to a runoff not only limited to riots, disturbances to security, and natural disasters, but also other disturbances not yet set in the legislation, as long as they are not politicized or manipulated disturbances for certain interests. As such, maintaining the phrase ‘other disturbances’ in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 does not necessarily lead to uncertainty of the implementation of the election, but accommodate the wish or goal of the Petitioner’s petition that the election be implemented by continuing the halted stages or stages that could not be implemented through a runoff,” the Court stressed.

According to those legal considerations, the Court believes that the phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of Law No. 7 of 2017 has not lead to legal uncertainty nor has it eliminated the guarantee of protection over the right to vote in the 1945 Constitution, which the Petitioner alleged. The Court declared the petition not legally grounded and rejected it in its entirety.

Also read:

Phrase “Other Disturbances” on Election Delay Challenged

Petition on Phrase “Other Disturbances” on Election Delay Revised

The Petitioner argued that the phrase “other disturbances” in Article 431 paragraph (1) and Article 432 paragraph (1) of the Election Law was subject to multiple interpretations and unable to explain what could lead to the postponement of the election. “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.

The Petitioner 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. Based on those explanations, the Petitioner 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 the petitum, he requested 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.

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.

---