Legal counsels Erizal and Rahman Kurniansyah conveying the subject matters of the petition on the judicial review of the Election Law, Monday (6/12/2023). Photo by Humas MK/Ifa.

---

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the judicial review of Law No. 7 of 2017 on General Elections on Monday, June 12, 2023. The case No. 56/PUU-XXI/2023 was filed by the Berkarya Party, who challenges Article 169 letter n and Article 227 letter i of the Election Law.

Article 169 letter n of the Election Law reads, “Requirements that must be fulfilled by a Presidential and Vice-Presidential candidate are as follows: n. having not served as a president or vice president for 2 (two) tenures in the same position.”

Article 227 letter i of the Election Law reads, “Registration of a presidential candidate ticket as mentioned in Article 226 shall be supplemented by the following documents: i. a statement letter certifying that the nominated candidates has never served as a president or a vice president for 2 (two) tenures in the same position.”

On site at the hearing, legal counsel Erizal explained that the Petitioner was not mentioned in the KPU (General Elections Commission) Decree No. 518 of 2022 on the Stipulation of Political Parties in the Election dated December 14, 2022, so it will not contest in the 2024 Election. “Although the Petitioner is not a contesting party in the 2024 Election, it believes it has legal standing [in this case,” he appealed before Deputy Chief Justice Saldi Isra (panel chair) and Constitutional Justices Arief Hidayat and Suhartoyo.

Erizal argued that along with coalition of parties contesting in the 2024 Election, the Petitioner had met the presidential threshold requirements. In addition, since it is a non-parliamentary party, it did not discuss Law No. 7 of 2017 so, following the Constitutional Court Decision No. 35/PUU-XII/2014 it has legal standing to file the case. Therefore, it asserted that it had a right to fair legal certainty, equal opportunity in government, and the constitutional right to endorse a presidential ticket prior to the election.

The Petitioner argued that Article 169 letter n and Article 227 letter i of the Election Law, which contains the word “or,” imply that both presidential and vice-presidential candidates must “not have served as a president for 2 (two) tenures in the same position” or “not have served as a vice president for 2 (two) tenures in the same position.” As such, the legal consequence of these articles is that a president who has served for two terms cannot be re-endorsed as a vice president in the next election. This harms the Petitioner and other parties contesting in the 2024 Election that have formed a coalition to endorse a certain presidential ticket.

Based on these reasons, the Petitioner requests that the Court grant the petition and declare Article 169 letter n and Article 227 letter i of the Election Law unconstitutional and not legally binding if not interpreted to mean “a presidential candidate shall not have served as a president for 2 (two) tenures in the same position or a vice-presidential candidate shall not have served as a vice president for 2 (two) tenures in the same position” and not interpreted to mean “a statement letter that a presidential candidate has not served as a president for 2 (two) tenures in the same position” or “a statement letter that a vice-presidential candidate has not served as a vice president for 2 (two) tenures in the same position.”

Justices’ Advice

In response, Constitutional Justice Suhartoyo said that the Petitioner only had 2% of votes in the 2019 Election, while the threshold for being able to endorse a presidential ticket is 20% national valid votes.

“If [the Petitioner] argues or explains either potential or actual constitutional impairment, it must be explained which parties it will form a coalition with so that the 20% [requirement] is met. This is to explain legal standing. Also, a president who have served two terms runs for reelection, vice president—who those are must be explained to explain legal standing,” he said.

Constitutional Justice Arief Hidayat supported this sentiment. Legal standing, he said, is the entrance to the case, so it must be understood well. “Please read Decisions No. 50 of 2021 and No. 117 of 2022 and No. 4 of 2023,” he said.

Meanwhile, Deputy Chief Justice Saldi Isra asked the Petitioner to explain Article 60 of the Election Law and Article 78 of Constitutional Court Regulation (PMK) No. 2 of 2021. He suggested that the Petitioner read decisions related to the norms it challenges.

“Previous petitions challenging the norms must be compared. There have been decisions on that. If your legal standing is [valid], the second thing [to consider] is whether it is ne bis in idem. If there is not a different reason, legal basis, and legal reason, [the case] will not continue. Your job is to explain to [the Court] the difference between this [petition] and the previous ones,” he explained.

Before concluding the session, Deputy Chief Justice Saldi said the Petitioner had 14 days to revise the petition. “The deadline to submit the revised petition is Monday, June 26, 2023 at 13:30 WIB,” he concluded.

Also read:

Berkarya Party Questions Terms of Office of President-Vice President

Court Rejects Berkarya Party’s Petition on President’s Term of Office 

Author       : Utami Argawati
Editor        : Nur R.
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.

---