Petitioner Handrey Mantiri and this legal counsels the material judicial review of Law No. 7 of 2017 on General Elections, Thursday (7/6/2023). Photo by Humas MK/Panji.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the judicial review of Law No. 7 of 2017 on General Elections (Election Law) on Thursday, July 6, 2023. The petition No. 65/PUU-XXI/2023 was filed by Handrey Mantiri and Ong Yenni.

The hearing was presided over by Constitutional Justices Enny Nurbaningsih (chair) and Daniel Yusmic P. Foekh and Deputy Chief Justice Saldi Isra. At the hearing, legal counsel Donny Tri Istiqomah explained the Petitioners’ identities and legal standing. Handrey Mantiri (Petitioner I) is an Indonesian citizen and voter, while Ong Yenni (Petitioner II) is an Indonesian citizen and a legislative member candidate.

Donny went on to explain that the Petitioners challenge the elucidation to Article 280 paragraph (1) letter h of the Election Law. The article reads, “Electoral Campaign organizers, participants, and teams shall be prohibited from: h. using state facilities, houses of worship, or educational institutions.” Meanwhile, it elucidation reads, “Government facilities, places of worship, and educational institutions may be used if an election contestant attends without any campaign attributes, based on the invitation of the person or organization responsible in managing that government facility, places of worship, or educational institution.”

The Petitioners believe the elucidation to le 280 paragraph (1) letter h of the Election Law has reduced their right to substantive justice in election voting, because campaign at places of worship would restrict the Petitioners from participating in election campaigns outside of their places of worship—Protestant churches for Petitioner I and viharas for Petitioner II. This could potentially harm their constitutional right, especially in relation to the freedom and justice in selecting election candidates.

“The elucidation [explains that it is allowed] to campaign at government facilities, places of worship, and educational institutions. Meanwhile, the [article] prohibits it. The potential impact constitutionally, first, for Petitioner II who is Buddhist, in the context of campaign at places of worship, there is injustice,” Donny said.

The permission to use government facilities for election campaign would make it difficult for the Government to act neutral with all election contestants, because although the president and the heads of regions are election directly by the people, they have to be endorsed by political parties and/or group of political parties. There is concern that they allow government facilities for election campaign only to candidates endorsed by parties affiliated with them.

The use of government facilities for election campaign would only be possible to those with power in said regions, thus creating negative perception of the political process. Therefore, election campaigns shall be held in neutral, non-religious locations in order to push participation by all members of society.

In addition, equal treatment before the law for justice in campaign at government facilities, places of worship, and educational institutions is impossible and must be prohibited.

The Petitioners believe the elucidation to the norm has expanded and add a norm as well as lead to delegation to lower regulations. They believe this has caused constitutional impairment, i.e. legal uncertainty.

The Petitioners also assert that religious live should not be exploited for any political interest. They also argue that educators must be neutral in performing their duty to improve the nation’s intelligence and to not be partial to any political power. Thus, election campaign at educational institutions could potentially divide them into political factions. Therefore, in the petitum, the Petitioners request that the Court declare the elucidation to Article 280 paragraph (1) letter h of the Election Law unconstitutional and not legally binding.

Justices’ Advice

In response to the petition, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to strengthen their argument. “Strengthen the argument that during election process there could potentially be misappropriation or there could be examples that can convince the justices in the concrete cases relating to the contradiction between the content of the article and the elucidation, which could lead to the things the Petitioners are concerned about,” he said.

He also advised them to elaborate the thoughts that developed during the discussions for this Law to convince the justices. “To improve the argument, I believe, there must be research, for example off books, journals, or other written texts to strengthen this argument so this petition can convince the justices.”

Meanwhile, Constitutional Justice Enny Nurbaningsih requested that the Petitioners revise the petitum with reference to Article 10 of Constitutional Court Regulation (PMK) No. 2 of 2021. “Please read PMK No. 2 of 2021 Article 10. This is not the correct formulation of a petitum. To explain that Article 280 paragraph (1) letter h of, et cetera, is against the 1945 Constitution. There is no need to explain the article because it is already in the posita,” she said.

Before adjourning the hearing, Justice Enny announced that the Petitioners had 14 workdays to revise the petition and submit it to the Registrar’s Office by Thursday, July 20 at 09:00 WIB.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Raisa Ayudhita
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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