Bivitri Susanti: Age Limit for Presidential Tickets Not a Constitutional Issue

Bivitri Susanti testifying as an expert for Perludem at a material judicial review hearing of Law No. 7 of 2017 on General Elections on the age limit of presidential tickets, Tuesday (8/29/2023). Photo by Humas MK/Fauzan.

JAKARTA (MKRI) — Another judicial review hearing on the age limit in the presidential ticket nomination in Law No. 7 of 2017 on General Elections took place in the Constitutional Court (MK) on Tuesday, August 29, 2023 for three cases: No. 29/PUU-XXI/2023 filed by the Indonesian Solidarity Party (PSI) and several individual petitioners, No. 51/PUU-XXI/2023 filed by the Change Movement Party of Indonesia (Garuda Party), No. 55/PUU-XXI/2023 filed by several young heads of regions.

At this sixth hearing, the Association for Elections and Democracy (Perludem),  Evi Anggita Rahma and colleagues, Rahyan Fiqi and colleagues, the Independent Election Monitoring Committee (KIPP), and the People’s Voter Education Network (JPPR) testified as Relevant Parties.

As an expert presented by Perludem at the hearing chaired by Chief Justice Anwar Usman, Bivitri Susanti talked about the age limit for the presidential and vice-presidential nomination and maturity level for occupying certain positions. Bivitri argued that, based on legal logic, the age limit as a condition for nominating presidential tickets is not a constitutional issue. Age restrictions are not usually strictly regulated, because politicians are assessed by their track records. As a result, various countries apply various age limits because political capacity and intelligence cannot be equated with physical fitness.

Bivitri further said that due to the development of medicine and science, age limits are usually determined by a policy and not considered a fixed, unchangeable issue because various positions can be carried out with relevant scientific studies and might have nothing to do with the law. In addition, policymakers can argue for an appropriate age limit in policy formation based on evidence, such as the ability to manage information and communication. However, from the legal perspective, the only question is about rights and other non-legal or non-constitutional aspects because this case concerns a right relating to age limit. In the electoral context, there is a minimum voting age. Therefore, in this case, the age model is not the issue, but it is the assumption of the immaturity of Indonesia’s political culture and feudalism that saturate politics with family backgrounds and titles. Thus, age is often used as a filter to prevent inexperienced people or parties from becoming politicians.

“The debate on the threshold to be elected should be left as a policy, not a constitutional issue. The hope is that as political maturity develops and political civilization improves, it can also be regulated contextually. If the Constitutional Court rules in a decision, the flexibility will be lost because the age limit will become a constitutional issue that the Court must re-examine with inconsistent logic,” she said.

Discrimination against Citizens

Legal counsel of Evi Anggita and colleagues (a Relevant Party) Sunandiantoro said his clients are individual citizens who had been given the right to vote for presidential candidates. They alleged that the change to the age limit for the nomination of presidential tickets from 40 years to 35 years would actually discriminate against other citizens.

“It would be strange and inconsistent if the petition states that the minimum age of presidential and vice-presidential candidates of 35 years do not limit other people’s constitutional rights, while the maximum age limit of 70 years do. For this reason, we want to emphasize that in politics we expect the elites to provide good political education and ethics, not to let politics toys with the law, in this case the Constitutional Court,” Sunandiantoro said at the hearing in the plenary courtroom.

Meanwhile, Rayhan Fiqi Fansuri (Relevant Party I) and Sultan Bagarsyah (Relevant Party II) testified on case No. 29/PUU-XXI/2023. As individual citizens, they are free to vote for presidential candidates and to voice their opinions on the age limit for presidential candidates. Sultan Bagarsyah said the article being petitioned does not violate the values of morality, rationality, and intolerable injustice and the right of citizens to elect and be elected.

“The Petitioners want to lower the age limit of presidential and vice-presidential candidates, which in fact contradict their own logic. The age limit of 40 years is the legislature’s moral choice that must be obeyed. The 1945 Constitution as the Constitution does not regulates such a minimum age limit,” said Sultan, who read the Relevant Party statement alternately with Rayhan Fiqi Fansuri.

Age Cannot Determine Maturity and Leadership, Relevant Party Says

Another Relevant Party, Oktavianus Rasubala, gave testimony on the three cases. As an individual citizen, he feels entitled to defend the democratic system based on Pancasila. So, he believes, legislation related to elections must be in accordance with the mandate of the 1945 Constitution.

“Based on the Advocate Law, as a law enforcer and as a legal practitioner, [I believe] the Petitioners’ petitions are far from the matter of constitutionality. So in this case, [I] believe age to be an index that measures personal development based on rough ideological, sociological, and cultural indexes. Therefore, it is difficult to categorize based on age and the article petitioned is constitutional and does not conflict with the 1945 Constitution and it was promulgated appropriately,” he said.

Next, the Independent Election Monitoring Committee (KIPP) and the People’s Voter Education Network (JPPR) also testified as a Relevant Party. Through Kaka Suminta, KIPP and JPPR stated that as institutions registered with the Government as part of the election monitoring process, they have a legal standing on the material judicial review of Article 169 letter q of the Election Law. 

“If the age of 35 was declared a fair age limit, then other age limits, such as 30 years old, are also fair. Age cannot determine a person’s maturity and leadership ability. They cannot be measured only by age. Even at 40 or 35 years of age, a person can have extraordinary achievements. So, reliance on the age of the candidates would lead to disregard for other important values such as education, experience, achievements, and dedication. Experience, for example, is a much more concrete measure to assess someone because it includes vision and mission, concrete plans, and their ability to realize the changes that the people want,” said Kaka.

Also read: 

PSI Requests Presidential Tickets Be at Least 35 Years Old

PSI Strengthens Argument of Minimum Age for Presidential Tickets

The case No. 29/PUU-XXI/2023 was filed by the Indonesian Solidarity Party (PSI), Anthony Winza Probowo, Danik Eka Rahmaningtyas, Dedek Prayudi, and Mikhail Gorbachev (Petitioners I-V). They challenge Article 169 letter q of the Election Law reads, “Requirements that must be fulfilled by a Presidential and Vice-Presidential candidate are as follows: at least 40 (forty) years of age.”

At the preliminary hearing on Monday, April 3, through Francine Widjojo, the Petitioners asserted that the Petitioners were currently thirty-five years old and requested that the lowest age limit for presidential tickets be set at thirty-five with the assumptions that they had enough experience to run in the election. They argued that the norm was discriminatory and against moral and rational values and in violation of Article 28D paragraph (3) of the 1945 Constitution.

“While in principle, the state provides the nation’s youth with the opportunity to lead the nation and offers the widest opportunity so that the best candidates of the nation can run in the election. Therefore, the object of the petition is a discriminatory provision since it violates moral [values]. When the Indonesian people are forced to only choose leaders that meet a discriminatory requirement, this leads to injustice for the Indonesian people and the selected [candidates],” Widjojo said.

Therefore, the Petitioners requested that the Court grant the entire petition and declare Article 169 letter q of the Election Law unconstitutional and not legally binding if not interpreted as “at least 35 (thirty-five) years of age.” 

Also read: 

Garuda Party Challenges Provisions on Presidential Candidates’ Age Limit

Garuda Party Requests Youth and Experience Be Made Presidential Candidate Requirements 

Meanwhile, the petition No. 51/PUU-XXI/2023 was filed by the Change Movement Party of Indonesia (Garuda Party), represented by its central executive board chairman Ahmad Ridha Sabana and secretary-general Yohanna Murtika, who also questions the requirements for the president and vice-presidential candidates’ age limit in Article 169 letter q of the Election Law.

At the preliminary hearing, the Garuda Party revealed its intention as a participant in the 2024 election to recruit regional head candidates under 40 years old to become vice-presidential candidates. Many of these young leaders have potential and experience in government. Similarly, many members of parliament serving in 2019-2024 are under 40 years old, such as 23-year-old Brigitta Lasut from Gerindra, 25-year-old Andrian Jopie Paruntu from Golkar.

In other countries, the Party added, there have been presidents and vice presidents under 40 years old, such as 35-year-old Chile president Gabriel Boric and 38-year-old Chad president Mahamat Deby. In the U.S. Constitution, the presidential candidate should be at least 35 years old.

Therefore, the Petitioner could potentially be harmed by the enactment of Article 169 letter q of the Election Law, which set the requirements for vice-presidential candidates. Since there are many under-40 prospective candidates who can advance the nation and state and have experience in government, the article is in violation of Article 28D paragraphs (1) and (3) and Article 28I paragraph (2) of the 1945 Constitution. 

Also read:

Young Heads of Regions Challenge Requirements for Vice-Presidential Candidates

Heads of Regions Revise Petition on Age Requirement for Presidential Tickets 

The case No. 55/PUU-XXI/2023 was filed by several heads of regions: Erman Safar (deputy mayor of Bukittinggi for 2021-2024), Pandu Kesuma Dewangsa (South Lampung vice regent for 2021-2026), Emil Elestianto Dardak (East Java vice governor for 2019-2024), Ahmad Muhdlor (Sidoarjo regent for 2021-2026), and Muhammad Albarraa (Mojokerto vice regent for 2021-2026). The young petitioners challenge the constitutionality of the age requirement for presidential ticket candidates in Article 169 letter q of the Election Law.

At the preliminary hearing on Wednesday, May 31, legal counsel Munathsir Mustaman explained the Petitioners had lost their constitutional right to run for vice president, which is guaranteed and protected by Article 6 paragraph (1) of the 1945 Constitution. They have experience as state administrators and are currently regional heads, so they argue that they have legal standing to file the petition against the a quo Law.

“Experience as state administrators should be an exception to the requirement of vice-presidential candidate’s age limit. As long as one has experience as a state administrator, even if they are under 40 years old, they should be equated to passing the minimal age limit as required,” Mustaman said.

Based on those reasons, the Petitioners requested in the petitum that the Court declare the phrase “at least 40 (forty) years of age” in 169 letter q of the Election Law unconstitutional and not legally binding conditionally if not interpreted to mean “at least 40 (forty) years of age or have experience as a state administrator.”

Also read:

House Leaves Presidential Ticket Requirements to Constitutional Court

Perludem, Gerindra’s Differing Views on Age Requirement for Presidential Tickets 

Expert Testimony on Presidential Ticket’s Age Submitted in Writing 

Author       : Sri Pujianti
Editor        :
Nur R.
PR            : Raisa Ayuditha
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 29, 2023 | 15:30 WIB 592