Deputy Chief Justice Saldi Isra reading out the Court’s opinion at the ruling hearing of the judicial review of Law No. 10 of 2016 on Regional Elections, Monday (7/31/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The provisions on the tenure of heads of regions elected in 2018 as stipulated in 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) was declared not unconstitutional.
As such, the Constitutional Court (MK) justices rejected the entire petition by Elly Engelbert Lasut and Moktar Arunde Parapaga. The Decision No. 62/PUU-XXI/2023 was delivered on Monday, July 31, 2023 in the plenary courtroom. “[The Court] adjudicated, rejects the Petitioners’ petition in its entirety,” said Chief Justice Anwar Usman reading out the verdict.
In its legal considerations read out by Deputy Chief Justice Saldi Isra, the Court held that as a transitional norm specifically designed for the election of regional heads in 2018, which is then connected to the upcoming nationally-simultaneous regional election in 2024, if Article 201 paragraph (5) of the Pilkada Law—“The Governors and Vice Governors, Regents and Vice Regents, and Mayors and Vice Mayors elected in the 2018 Election shall take office until 2023”—was interpreted as “The Governors and Vice Governors, Regents and Vice Regents, and Mayors and Vice Mayors shall take office for 5 (five) years or for as long as the tenure allows until the 2024 Simultaneous Election takes place, starting from their inauguration” could lead to legal uncertainty for 170 head of regions and their deputies elected in 2018.
Deputy Chief Justice Saldi added that, if read and interpreted as a whole, the phrase “elected in the 2018 Election shall take office until 2023” as a transitional norm is the most essential part of the entire Article 201 paragraph (5) of the Pilkada Law. Reinterpretation of the phrase could potentially create implications that are not simple for other regional heads elected in 2018. This is because in 2018, 171 regions held a local election simultaneously. According to logical reasoning, apart from the regent and vice regent of Talaud Islands, 170 heads of regions base their transition period arrangements on the provision of Article 201 paragraph (5).
“Therefore, the heads of other regions aside from the Petitioners in this case are also regulated and comply with this provision. As such, any change to the provision could potentially affect [them]. Moreover, this reinterpretation could potentially create implications that are not simple for other norms in Article 201 of the Pilkada Law, including the implementation of the regional head election during the transition period of 2020,” Deputy Chief Justice Saldi said.
Upsetting Norm Construction
Next, Deputy Chief Justice Saldi said the Court is aware that inauguration marks the start of the tenure of heads of regions, but the Petitioners’ request that the phrase “elected in the 2018 Election shall take office until 2023” be interpreted as “shall take office for 5 (five) years or for as long as the tenure allows until the 2024 Simultaneous Election takes place, starting from their inauguration” not only could upset the construction of the transitional norm in Article 201 of the Pilkada Law as a whole. As such, the Court held that Article 201 paragraph (5) of the Pilkada Law did not lead to legal uncertainty and that the Petitioners’ petition was legally groundless in its entirety.
Abnormality of Tenure
Constitutional Justices M. Guntur Hamzah and Suhartoyo had a concurring opinion on the case. They believed that instead of rejecting the petition, the Court should have ruled to dismiss it as the case concerned the abnormality of the head of region’s tenure. Before the 2024 simultaneous regional election, the tenure used to be the same, five years. Afterward, it varies by region and in some regions the head of regions must face the reality of a tenure of less than five years. Such abnormality could be faced by other heads of regions, who should not have suffered from it.
“The issue of constitutionality of the norm should be adjusted to accommodate issues as what the Petitioners are facing. However, the Petitioners’ petition was obscure. If it had not been obscure, it could continue and the Court might not arrive at the decision to reject the a quo petition and declare Article 201 paragraph (5) of the Pilkada Law constitutional, but declare the Petitioners’ petition inadmissible,” Justice Guntur asserted.
Also read:
Talaud Islands’ Regent, Vice Regent Challenges Provisions on Tenure
Talaud Islands’ Officials Revise Background of Case on Regional Head 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 believed that Article 201 paragraph (5) of Law No. 10 of 2016 had 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 argued 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, because there could be a time gap between the announcement of the election results and the inauguration. As such, in the petitum, the Petitioners requested 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.
Monday, July 31, 2023 | 15:56 WIB 158