Legal counsel Yusril Ihza Mahendra Kuasa at the material judicial review of Law No. 10 of 2016 on Regional Elections, Monday (7/17/2023). Photo by Humas MK/Ifa.

---

JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 201 paragraph (5) of Law No. 10 of 2016 on the Second Amendment to Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law (Pilkada Law) for case No. 62/PUU-XXI/2023 on Monday, July 17, 2023. The petition was filed by Elly Engelbert Lasut and Moktar Arunde Parapaga, who were elected regent and vice regent of Talaud Islands in the regional election (pilkada) of 2018.

Yusril Ihza Mahendra, the Petitioners’ legal counsel, conveyed several reasons to the petition, which are different from those of previous cases, relating to Article 18 paragraphs (4), (5), and (7) and Article 28D paragraph (1) of the 1945 Constitution. The legal certainty of the term of heads of regions until the maximum end of the term is in line with the constitutional right as referred to in Article 28D paragraph (1) of the 1945 Constitution. He further said that although the touchstones in this case have been used in previous cases, the case has a different constitutional basis, i.e. uncertainty in the Petitioners’ term.

“This is because the legislatures used the results of the 2018 election to limit the [Petitioners’] term to only up to 2023 when the accurate basis is not when the election took place but when the inauguration did. Therefore, the case had a different reason. As such, the petition obviously is not ne bis in idem and the Court has authority to adjudicate it. Therefore, the Petitioners have legal standing on the basis of legal uncertainty for the Petitioners as it concerns their term, which is five years since the election and not inauguration to the positions,” said Yusril before Deputy Chief Justice Saldi Isra and Constitutional Justices Arief Hidayat and Suhartoyo.

Next, legal counsel Gugum Ridho Putra said 201 paragraph (5) of the Pilkada Law is unconstitutional since the legislatures have determined the regional heads’ term as five years since inauguration, with eligibility for a one-term reelection. Meanwhile, the Petitioners’ term was counted since election. Thus, such implementation of the norm is clearly against Article 28D paragraph (1) of the 1945 Constitution relating to the rest of the Petitioners’ term.

Also read: Talaud Islands’ Regent, Vice Regent Challenges Provisions on Tenure

At the preliminary hearing on Tuesday, July 4, the Petitioners asserted that based on Article 162 paragraph (2) of Law No. 10 of 2016, regents, mayors, and their deputies are elected for five years. This means that since their inauguration in 2020, which was delayed for two years, the Petitioners’ tenure should be over by 2025. This delay was not a fault of their own, but because the governor of North Sulawesi refused to inaugurate them. They responded by filing a lawsuit with the state administrative court.

The Petitioners believe that Article 201 paragraph (5) of Law No. 10 of 2016 has eliminate their opportunity to participate in the administration of Talaud Islands Regency alongside the regency’s DPRD (Regional Legislative Council) for five full years. Although the regency’s DPRD members were elected through a general election while the Petitioners by a regional election, they were elected to serve for five years.

In the petition, the Petitioners argue that the phrase “the result of an election,” not “the result of an inauguration” in Article 201 paragraph (5) has made a loophole where the tenure of regional heads be shorter than five full years. This is because there could be a time gap between the announcement of the election results and the inauguration. Therefore, in the petitum, the Petitioners request that the Court declare Article 201 paragraph (5) of Law No. 10 of 2016 unconstitutional and not legally binding if not interpreted as “Regent and vice regent shall take office for 5 (five) years since the date of inauguration.”

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : M. 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.

---