Petitioner Handrey Mantiri and legal counsels after the ruling hearing of the material judicial review of Law No. 7 of 2017 on General Elections, Tuesday (8/15/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) part of the judicial review petition of Law No. 7 of 2017 on General Elections (Election Law)—filed by Handrey Mantiri, a private employee, and Ong Yenni, a member of DRPD (Regional Legislative Council) of DKI Jakarta—on Tuesday, August 15, 2023 in the plenary courtroom. The Petitioners questioned the prohibition on using government facilities, places of worship, and educational institutions for election campaign in Article 280 paragraph (1) letter h of the Election Law.
“[The Court] adjudicated, grants the Petitioners’ petition in part,” said Chief Justice Anwar Usman delivering the Decision No. 65/PUU-XXI/2023 alongside the other eight constitutional justices.
The Court also held that the clause “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” in the elucidation to the a quo article was unconstitutional and not legally binding.
It also held that the a quo article was unconstitutional and not legally binding if not interpreted to mean “excluding government facilities and educational institutions if there is permission from the person or organization responsible in managing that venue in question and without any campaign attributes.”
As such, Article 280 paragraph (1) letter h of the Election Law now reads, “(Electoral Campaign organizers, participants, and teams shall be prohibited from: h.) Using government facilities, places of worship, and educational institutions, except for government facilities and educational institutions as long as they obtain permission from the manager of the site in question and attends without any campaign attributes.”
Campaign Restrictions
In its legal considerations delivered by Constitutional Justice Enny Nurbaningsih, the Court asserted that restrictions on election campaign has a strong rationale, i.e. in order to maintain integrity, transparency, and justice in political process. A contrario, campaigns without restrictions could potentially lead to the spread of disinformation, slander, or manipulation in an attempt to influence voters.
Campaign restrictions can help prevent the spread of misleading or inaccurate information. In addition, for election participants, these restrictions help to maintain equality in elections so that all candidates have an equal chance of gaining support.
Campaign restrictions can be limiting the time, media, funding, and locations. In the a quo case, the main issue is campaign restrictions in certain locations, i.e. government facilities, places of worship, and educational institutions.
“The Court held that campaign restrictions based on location or place are based on several important principles aimed at maintaining the neutrality and integrity of the electoral process, preventing disruption to public activities in certain places, so as to maintain the principle of balance and at the same time maintain the principle of neutrality and to avoid misuse of public facilities,” Justice Enny said.
Campaign at Places of Worship
Places of worship are one of the places prohibited for campaign by Article 280 paragraph (1) letter h of the Election Law. In this context, it is important to respect the sensitivity and values of culture, religion, and religious freedom. Although political campaigns are an important part of the democratic process, restrictions must be set so as not to damage harmony and values held by the community.
Places of worship have a high spiritual meaning and value for the adherents. Using a place of worship as a campaign venue could potentially trigger emotions and controversy and damage religious values. Moreover, when it is located among a community that is increasingly easily provoked and quickly reacts to issues on identity politics, ethnicity, and religion with little assessment of objective facts, it could potentially deepen political polarization, leading to many different narratives and opinions on the same facts, which could in turn weaken social cohesion.
“In this case, restrictions on the use of places of worship for election campaign do not mean a separation between religious and state institutions, but rather distinguishing the functions of religious institutions and the realm outside religion in society, especially for issues that have very high practical political values,” Justice Enny added.
Regulating Campaign Restrictions
Constitutional Justice Enny Nurbaningsih further stated that based on historical studies, there is a regulation of campaign restrictions from using government facilities, places of worship, and educational institutions, at least since the Reform era. In fact, criminal sanctions have also been regulated in the event of a violation of the restrictions.
However, upon careful examination, both Article 280 paragraph (1) letter h of Law No. 7 of 2017 and Article 299 of Law No. 8 of 2012, which it quotes, lay out restrictions for election campaigners, participants, and teams to conduct campaigns using government facilities, places of worship, and educational institutions. In fact, Article 280 paragraph (1) letter h of Law No. 7 of 2017 stipulates a maximum of 2 (two) years of imprisonment and a maximum fine of 24 million rupiahs. It also reiterates the formulation stipulated in Article 299 of Law No. 8 of 2012.
The problem is whether the criminal sanctions can be applied effectively because the elucidation to Article 280 paragraph (1) letter h of Law No. 7 of 2017 regulates an exception to the prohibition on the usage of government facilities, places of worship, and educational institutions election participants attend without campaign attributes with an invitation by the one in charge of those locations. Furthermore, it also explains that “educational institution” refers to the building and/or yard of schools and/or universities.
With regard to exception in the elucidation of a Law, the Court refers to the lawmaking technical provisions in point 176 of Annex II of Law No. 12 of 2011 on Lawmaking as last amended by Law No. 13 of 2022, which provide guidelines in formulating elucidations and definitions. An elucidation functions as an official interpretation by the legislature of certain norms in the body. Therefore, it only contains a description of words, phrases, sentences, or the equivalent of loan words/terms in the norm, sometimes also with the examples. It is a means to clarify the norms in the body where obscurity must be avoided. Furthermore, point 178 of the annex also stipulates that “the elucidation does not use formulations that contain hidden changes to the provisions of laws and regulations.”
The Court held that an exception should be placed in the body of the Election Law. It realized that government facilities or educational institutions could still be used for election campaigns. However, because both places are prohibited for such a purpose, the Court needed to include an exception as stated in the elucidation to Article 280 paragraph (1) letter h of the Election Law into the norm. The incorporation was based on No. 12 of 2011, which states that an elucidation may not include a formulation containing the norm, especially if the elucidation contradicts the main norm.
“Therefore, the Court held that it is important to include part of the elucidation as part of the exception to the norm of Article 280 paragraph (1) letter h of Law No. 7 of 2017 so that the implementers, participants, and election campaign teams can use government facilities and educational institutions as long as they receive permission from the person in charge of the place in question and attend without campaign attributes,” Justice Enny said reading out the Court’s legal considerations.
Also read:
Petitioners Questions Places to Be Free from Election Campaign
DPRD Member of DKI Jakarta Revises Petition on Campaign Prohibition
On Thursday, July 6, the Court held a preliminary hearing for the judicial review of the case No. 65/PUU-XXI/2023, in which the Petitioners challenged the elucidation to Article 280 paragraph (1) letter h of the Election Law, which 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 believed the elucidation to le 280 paragraph (1) letter h of the Election Law had reduced their right to participate in election campaigns outside of their places of worship—Protestant churches for Petitioner I and viharas for Petitioner II.
“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,” said counsel Donny Tri Istiqomah.
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 Petitioners believed the elucidation to the norm had expanded and added a norm as well as lead to delegation to lower regulations. Therefore, in the petitum, the Petitioners requested that the Court declare the elucidation to Article 280 paragraph (1) letter h of the Election Law unconstitutional and not legally binding.
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.
Tuesday, August 15, 2023 | 17:41 WIB 509