Constitutional Justice M. Guntur Hamzah delivering the Court’s legal opinion at the ruling hearing for the material judicial review of Law No. 7 of 2017 on General Elections, Tuesday (6/27/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition of Article 10 paragraph (9) of Law No. 7 of 2017 on General Elections (Election Law) on Tuesday, June 27, 2023. The petition was filed by advocate Bahrain and the Center for Strategic and Indonesian Public Policy (CSIPP).

“[The Court] adjudicated: firstly, to declare the petition of Petitioner II inadmissible; secondly, to reject the Petitioners’ petition for the rest and remainder,” said Chief Justice Anwar Usman delivering the Decision No. 120/PUU-XX/2022 alongside the other eight constitutional justices.

Delivering the Court’s legal opinion, Constitutional Justice M. Guntur Hamzah said that the mechanism for selecting election organizers is regulated in the Election Law, in that the selection of KPU (General Elections Commission) members is carried out by a selection team of a maximum 11 members, with at least 30% female members. The selection proses should not be longer than 6 months before the membership expires, as set forth in Article 22 paragraphs (1), (3), and (8) of the Election Law. In truth, the selection of provincial and regency/city KPU members is carried out by a selection team in the province. The KPU has been given full authority by the Election Law to regulate the selection method of the team.

Justice Guntur explained further that this team consists of five persons—academics, professionals, and community figures—who have integrity. The Election Law requires that the members are not concurrently election organizers and, following Article 28 paragraph (3) and Article 32 paragraph (3) of the Election Law, the KPU carries out ten stages of selection for its members. It then performs a fit and proper test on its prospective members and select candidates by ranking.

The Court asserted that most of the members of this selection team are not members of provincial and regency/city KPU. As such, Justice Guntur said, the KPU is able to perform its duties and authority in the election process despite concurrent selection of KPU members.

Tenure of KPU Members

The Court also asserted that Article 10 paragraph (9), which regulates the tenure of provincial and regency/city KPU members, is not only the legal basis for the 2024 Election, but was also for the 2019 Election and will be for future elections.

“This means that relating to the article whose interpretation the Petitioners requested, in juridical terms, the a quo article can only be used for the 2024 Election and cannot be a guideline for future elections,” Justice Guntur said.

Concurrent Selection

Justice Guntur also said that the election was designed to be simultaneous in order to reinforce the presidential system for the election of DPR (House of Representatives), DPD (Regional Representatives Council), president-vice president, DPRD (Regional Legislative Council), governors, and regents/mayors. In relation to this, the Court in Decision No. 55/PUU-XVII/2019 had provided several models of simultaneous election, whose selection was left to the legislatures to guide the implementation of the 2024 Simultaneous Election.

Nevertheless, the Election Law and Pilkada (regional election) Law remains in effect, which affect the model of the election. Consequently, the selection of election organizers, especially in the regions, has not been concurrent across all regions. As such, the KPU should adjust the selection of members of provincial and regency/city KPU to match the simultaneous election. That said, the election stages have begun and many KPU members in the regions have been selected to replace their predecessors. This means that concurrent selection of these KPU members in the regions is not feasible.

“To ensure that the simultaneity in question not only applies to voting, but also to all important elements in the implementation of the election… [such as] the filling of election organizer vacancies. Because the simultaneous election model has been adopted, there is no other choice than to fill these vacancies simultaneously. However, since the petition was filed by the Petitioners after the election stages already started, the filling could not be done simultaneously in 2024. [As such], it was irrelevant for the Court to consider the Petitioners’ request to lengthen the tenures of election organizers in several regions,” Justice Guntur asserted.

Also read:

Petitioners Request Tenures of KPUD Members Be Extended Until After Election

Petitioners Revise Petition on Tenures of KPUD Members

Hasyim Asy’ari: Selection of KPU Members Does Not Hinder Elections

Extension of KPU’s Tenure Potentially Unconstitutional

Experts’ Written Statements Delayed, Hearing on Election Law Postponed 

KPU Member Selection Should Be Outside Election Stages 

Case on KPUD Members’ Tenure Nearing Conclusion

The Petitioners challenged Article 10 paragraph (9) of the Election Law, which reads, “The tenure of a chairperson and commissioner of a KPU, Provincial KPU, and Regency/City KPU is for 5 (five) years and they may be reappointed for only once at the same level of the hierarchy.”

They questioned the shortening of the tenure of provincial and regency/city KPU members in relation to the 2024 simultaneous election. They believed this violated the principle of legality, since those members had been inaugurated for a five-year term.

The selection for those members, which overlaps with the election process, could potentially disrupt the election process and lead to higher election costs since the state must compensate the dismissed members while still paying for the salaries for current members.

“Based on the KPU RI, the tenures of provincial KPU members in 2023-2024 are different. This variation will lead to many selection batches and selection schedules, thus disturbing the stages of the 2024 Simultaneous Elections. For a good election system, the recruitment of members of the provincial and regency/city KPU should be conducted simultaneously outside of the election stages or pre-election. Therefore, there needs to be a transition period that extends the tenures of the KPU members that expire in 2023 and 2024 until the end of the simultaneous elections in 2024,” legal counsel Ikhwan Fahrojih explained at the preliminary hearing on Monday, December 19, 2022.

In the petitum, the Petitioners requested that the Court declare Article 10 paragraph (9) of Election Law unconstitutional and not legally binding if interpreted as “The members of Provincial and Regency/City KPU whose tenures end in 2023 and 2024 shall have their tenures extended until after the simultaneous elections of 2024.”   

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Muhammad Halim
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.

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