Deputy Chief Justice Saldi Isra reading out the Court’s opinion at the ruling hearing of the judicial review of Law No. 7 of 2017 on General Elections, Tuesday (7/18/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) handed down Decision No. 56/PUU-XXI/2023 and rejected the judicial review petition of Law No. 7 of 2017 on General Elections on the presidential ticket requirements, filed by the Berkarya Party, on Tuesday, July 18, 2023 in the plenary courtroom.
Reading out the Court’s opinion, Deputy Chief Justice Saldi Isra said the Petitioner’s interpretation of Article 169 letter n and Article 227 letter i of the Election Law would allow for any two-term president to be elected vice president.
“This will cause a constitutional issue when Article 8 paragraph (1) of the 1945 Constitution must be implemented. In this case, in essence, [it] regulates and orders that in the event that the president passes away, resigns, is impeached, or cannot do their responsibilities during their term, they will be replaced by their vice president until the end of their term. In the event that the vice president has been a president for two terms, the situation referred to in Article 8 paragraph (1) of the 1945 Constitution is inevitable, so there is a constitutional obligation to make the vice president the president,” he explained.
In such a situation, the vice president who was a two-term former president will be a president for a third term. On one hand, it would lead to a constitutional violation of Article 7 of the 1945 Constitution. On the other hand, if the vice president is not made the president, it constitutes a violation of constitutional obligation, thus against Article 8 paragraph (1) of the 1945 Constitution. The interpretation of Article 7 of the 1945 Constitution requires that the requirements for presidential ticket candidacy be able to circumvent that constitutional issue.
The Petitioner’s reason to differentiate between the constitutional consequence of an elected president and that of a president that replaces a previous one could in fact potentially cause legal uncertainty that leads to a question of constitutionality of the term limit of such a president and their legitimacy.
Therefore, the Petitioner’s argument that Article 169 letter n and Article 227 letter i of the Election Law is unconstitutional on the basis of the right to fair legal certainty is legally groundless.
Deputy Chief Justice Saldi Isra explained that the argument led to the obstruction to the Petitioner’s right to run as a collected, which is guaranteed by Article 28C paragraph (2) of the 1945 Constitution, and to equal opportunity in government, as guaranteed by Article 28 paragraph (2) of the 1945 Constitution. The Court held that the right to endorse a presidential ticket must comply with statutory limitations. As long as these limitations are not unconstitutional, they cannot be said to have violated the citizens’ constitutional rights, especially to run in election as a collective and equal opportunity in government.
“The a quo norm, which regulates the requirements of presidential ticket endorsement, whose constitutionality has been ruled by the Court in Decision No. 117/PUU-XX/2022 and affirmed in sub-paragraph 3.14.1 and 3.14.2 above, is not unconstitutional. Therefore, limitations implemented by Article 169 letter n and Article 227 letter i of Law No. 7 of 2017 are not unconstitutional as they are a logical consequence of Article7 and Article 28 paragraph (1) of the 1945 Constitution, so not violating the rights guaranteed by Article 28C paragraph (2) and Article 28D paragraph (2) of the 1945 Constitution as argued by the Petitioner. Based on that consideration, the Petitioner’s a quo argument is legally groundless,” Justice Saldi added.
The Petitioner held that Article 169 letter n and Article 227 letter i of the Election Law does not violate the right to run in election collectively, equal opportunity in government, and the principle of fair legal certainty as guaranteed by the 1945 Constitution. Therefore, the Petitioner’s arguments are entirely legally groundless. As a result, the Court ruled to reject the Berkarya Party’s petition.
Dissenting Opinion
Constitutional Justice Daniel Yusmic P. Foekh had a dissenting opinion on the case. He asserted that the central executive board of the Berkarya Party was both the Petitioner in cases No. 56/PUU-XXI/2023 and 117/PUU-XX/2022, which both have the same object, i.e. Article 169 letter n and Article 227 letter i of the Election Law.
He revealed that in Decision No. 117/PUU-XX/2022, pronounced at a public plenary hearing on January 31, 2023, the Court handed down a verdict that rejected the Petitioner’s entire petition. “However, in that decision, I had a dissenting opinion on the Petitioner’s legal standing,” he said.
After careful observation of the explanation of the Petitioner’s constitutional impairment and legal standing in the a quo case, Justice Foekh said, there was not any new legal fact that significantly impacted his stance in Decision No. 117/PUU-XX/2022. “Therefore, my stance in that decision, mutatis mutandis, also applies for the a quo case. Therefore, I am in the opinion that the Petitioner did not have legal standing and the Court should declare the Petitioner’s petition inadmissible (niet ontvankelijke verklaard),” he emphasized.
Also read:
Berkarya Party Challenges Requirement for Presidential Tickets
Berkarya Party Questions Terms of Office of President-Vice President
Court Rejects Berkarya Party’s Petition on President’s Term of Office
Berkarya Party Revises Petition Against Provisions on Presidential Ticket Candidacy
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.”
At the preliminary hearing on Monday, June 12, legal counsel Erizal explained 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 requested 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.”
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.
Tuesday, July 18, 2023 | 14:19 WIB 186